Theory of everything. Deductions from the wages of employees Labor Code Article 137 of the Labor Code of the Russian Federation

Deductions from wages employee are made only in cases provided for by this Code and other federal laws. Deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; to pay off the unspent and not returned in a timely manner advance payment issued in connection with business trip or transfer to another job in another area, as well as in other cases; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this of the Code); upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing norms labor law), cannot be recovered from him, except for the following cases: counting error; if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code); if wages were overpaid to the employee in connection with his illegal actions established by the court.

Legal advice under Art. 137 of the Labor Code of the Russian Federation

    Nadezhda Ershova

    Article 137 of the Labor Code of the Russian Federation applicable to civil servants?. Restrictions on deductions from wages federal law dated July 27, 2004 N 79-FZ "On the state civil service Russian Federation"are not settled. Is it permissible in this case to apply Article 137 of the Labor Code of the Russian Federation in accordance with Article 73 of the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation"? The federal service in which I used to work (worked until June 2013) requested a refund of the "incorrectly" accrued salary for December 2012. They accrued the salary twice for December 2013 due to a program failure. I thought that the bonus fell out, and now I think so. And without any letters, notifications, requests require a refund.I believe that there must be a rationale, namely: that the salary was paid to me in excess due to a counting error (i.e., arithmetic).Advise me how to proceed if the Federal Service in which I used to worked will write a letter to my current management stating that I have been dishonestly fulfilling my job responsibilities(in fact, there was nothing like that), knowing that he received a double salary, did not say anything, etc.? What evidence base should be collected to file a libel complaint with the prosecutor's office?

    • Yes. The law is the same for everyone.

    Konstantin Tsvetov

    After the audit, they received a shortage, in the amount of 100 thousand rubles, 1 seller works. How should you act according to the law? How to keep it all? If there are articles of the law, please delete the links. Since the seller refuses everything and claims that by law she is obliged to pay only 25% of the shortage. Thank you.

    • If there is an agreement on full liability and the absence of the seller's fault has not been proven, the shortage is reimbursed in full, but not for 1 time. See Labor Code - articles 137, 138 and chapters 37-39

    Oleg Potemin

    Dismissal after vacation in advance, during which there was sick leave

    • The employee is absolutely right in demanding sick leave. You forget that vacation pay and disability benefits are completely different things. Vacation pay does not replace the obligation to pay sick leave. sick pay...

    Veronika Frolova

    The employer overpaid me 10,000 rubles in his own way. I quit. Can they withhold this money from my vacation pay?

    • Lawyer's response:

      When it is possible to deduct from the salary at the initiative of the organization At the initiative of the management of the organization (administration), the following can be deducted from the employee's earnings: - unworked advance payment issued on account of the salary; - unspent and not returned in a timely manner, issued under the report, in connection with the transfer to work in another area, etc.; - overpaid wages and other amounts overpaid to an employee due to a counting error or when proving his guilt in downtime or non-compliance with labor standards; - the amount of compensation for unworked vacation days upon dismissal of an employee before the end of the year; - the amount of benefits (sick leave and maternity benefits), overpaid in case of a counting error (for example, an arithmetic error was made when calculating earnings for the billing period) or illegal actions of the employee (for example, the employee hid information affecting the amount of benefits). Such cases of deductions at the initiative of the administration are listed in article 137 of the Labor Code of the Russian Federation and part 4 of article 15 of the Law of December 29, 2006 No. 255-FZ. Also, from the employee’s earnings, you can withhold the damage caused to the organization material damage(Articles 238 and 240 of the Labor Code of the Russian Federation). In this case, only the amount of direct actual damage is reimbursed (those losses that can be accurately calculated), the employee does not pay for the lost profit of the organization (Article 238 of the Labor Code of the Russian Federation). The employee is not liable if the property was damaged in a natural disaster, due to inadequate security, etc. A complete list of such situations is given in article 239 of the Labor Code of the Russian Federation.

    Vitaly Yablochnikov

    The accounting department said that at the end of the year I owe a debt and I have to pay it in cash. Is this normal and legal?

    • Lawyer's response:

      First, figure out whose fault it is and whether they have the right to withhold your salary at all. If this is an accounting error, let them be withheld. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an employee can reimburse an erroneously paid salary only according to own will(clause 3 of article 1109 of the Civil Code of the Russian Federation) Do not agree to voluntary payments (especially in cash), require a detailed explanation

    • why do you need a vacation if after 2 months (with a massive reduction after 3) you are already free! you are compensated for unused vacation how much do you have to! just check it yourself during the reduction process!

    • Natalia Smirnova

    Over the course of a year, I was mistakenly paid more than it should be, now it has become clear and they want to keep this amount. Is this legal and how can I prevent it???

    • Lawyer's response:

      To answer your question, you should refer to Article 137 of the Labor Code of Russia: “Article 137. Limitation of deductions from wages Deductions from an employee's wages are made only in cases provided for by this Code and other federal laws. Deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code) ; upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: a counting error; if the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code); if wages were overpaid to the employee in connection with his illegal actions established by the court. In the judicial practice of the courts of general jurisdiction of Russia, one can find a decoding of the concept of "counting error": 1. “... a counting error should be understood as an error made directly in the calculation process during mathematical operations, i.e., the incorrect application of the rules of mathematics” (“Judicial practice in civil cases Supreme Court Republic of Karelia for the 1st half of 2009” // Bulletin judicial practice Supreme Court of the Republic of Karelia, 2009, No. 2); 2. “... Within the meaning of the law, a counting error is an arithmetic error, and not an incorrect application of labor law norms” (Review of the judicial practice of the Khabarovsk Regional Court for 2010 (Part 1) X / / Journal “Judicial Power”, May 31, 2010. , No. 1 (5); official website of the Khabarovsk Regional Court) . If the employer has not proven the fact of a "counting error", or the disputed legal relations do not fall under the provisions of Article 137 of the Labor Code of Russia, then there are no legal grounds for the reverse recovery of wages paid to the employee.

    Evgenia Volkova

    Have they legally deducted from the salary the funds incorrectly accrued by the accounting department in the amount of 85% of the total amount of the payment? At the end of November-beginning of December I was on training, these 3 weeks were considered to me as a business trip (although I did not draw up any travel sheets) and money was charged. I checked with the accounting department whether the calculation was made correctly, because there was no business trip, to which they answered that everything was correct. In addition, from the calculation it was clear that I was undercharged with a monthly bonus (instead of 7 tons, they charged 1 tons). With this question I turned to the accounting department, they promised to look into it. In January, the advance was not transferred, explaining this by the fact that he went to pay the debt on the RFP. After another half a month, a salary of 3 thousand rubles came. This is about 15 percent of my salary. In connection with this situation, a lot of debts, and with such a salary I can not pay for the apartment. In general, very big problems arose. Tell me, is it legally deducted from me the money erroneously accrued by the accounting department in such a large amount and without my consent? If possible, please give links to articles in the Labor Code of the Russian Federation, for a competent justification of my position on this issue

    • Lawyer's response:

      No, it's illegal. In accordance with Article 137 of the Labor Code, the following can be deducted from the salary: - advance payment for unworked time - advance payment issued for a business trip, unspent and not returned in a timely manner - overpaid amounts of vacation taken in advance (upon dismissal) - amounts overpaid due to a calculation error (a counting error is an error in arithmetic operations, for example, 2 + 2 = 5). There are no other cases. In your case, the employer apparently considered that you received travel allowances and did not report on them. Let's leave aside the fact that during a business trip: a) you should have been acquainted with the relevant order under the signature; i.e., we will not dispute the very fact of being sent on a business trip. Even if you really, from the point of view of the employer, were on a business trip and did not report on it .... it doesn’t matter. This does not negate the fact that the employer violated the very procedure for withholding, provided for by the same article 137 of the Labor Code. According to the law, it was necessary: ​​a) to offer you to voluntarily return the overpaid amounts (in writing) b) to obtain your consent (again in writing) c) within a month to issue an order to withhold the excess payment from the salary (the month is calculated from the date when you must beat report on a business trip general rule(clause 11 of the Procedure for maintaining cash transactions) is three working days from the date of return from a business trip); d) withhold monthly no more than 20% of the salary (. Thus (leaving aside the very reason for the deduction), the employer, in accordance with Article 137 of the Labor Code, has the right to withhold the overpaid amount from the employee’s salary only if two basic conditions are met: with the consent of the employee and with the presence of an order issued within a month on such deduction.At the same time, the amount of deduction in accordance with Article 138 of the Labor Code cannot exceed 20% of the monthly payments due to you.

    Mikhail Loktistov

    Please tell me if the employer has to deduct the cost of training from the salary. according to the employment contract, it is written "the employee is obliged to compensate the employer for the damage caused in accordance with Article 39 of the Labor Code"

    • Lawyer's response:

      Article 137 of the Labor Code of the Russian Federation contains an exhaustive list of cases of deductions from an employee's wages. This article does not provide grounds for the forced deduction of the cost of training from the employee's salary. However, by agreement with the employee, it is possible to deduct any amounts, such as the costs of training the employee. In the situation under consideration, it should be borne in mind that deduction is possible only on the basis of an application from the employee. If these conditions are not met, the employee may judicial order demand the return of illegally withheld amounts. However, there is one exception to this rule. In particular, art. 249 of the Labor Code of the Russian Federation establishes cases of reimbursement of costs associated with the training of an employee. Namely, in the event of dismissal without good reason before the expiration of the period stipulated by employment contract or an agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of training, unless otherwise provided by the employment contract or training agreement. Thus, for the application of Art. 249 of the Labor Code of the Russian Federation, it is necessary that the following conditions are met: - sending an employee for training by the employer; - conclusion of an employment contract with the condition of employee training at the expense of the employer or a training agreement; - the presence in the employment contract or training agreement of the conditions to work out after training for a certain period; - payment by the employer of the cost of employee training; - dismissal of an employee before the expiration of the period stipulated by the employment contract or training agreement; - lack of valid reasons for dismissal.

    Daniil Kochmarov

    Can the company recalculate the salary and withdraw the wages erroneously charged to the card? An employee was mistakenly charged a salary when he was actually on sick leave. Due to an error in the computer system, the sick leave was "lost" and the days of appearances were affixed, how the employee used to go to work. Can the company recalculate the salary and withdraw the money accrued to the card of this employee? Or the employee has the right not to give this money back. Accordingly, is it necessary to ask this employee to write an application for consent to recalculate his salary? Thanks in advance for your reply!

    • Lawyer's response:

      No one has the right to withdraw money from the card except you and the bank. But the accounting department has the right to recalculate and deduct the overpayment from your salary next month. No one will ask you for consent. Article 137 of the Labor Code of the Russian Federation. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. In other cases, an employee can reimburse an erroneously paid salary only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation).

    Anna Dorofeeva

    Do I need to return the money paid for July 2012 if I worked for 5 days instead of a month? A minor child got a job under a monthly contract through a business incubator. Worked for only 5 days. In September, the salary was paid as for the whole month. Now they are asking for a refund of $3,000. Is there an article in the labor legislation regulating this situation? What should parents do?

    • If this is not the fault of the employee and not a counting error (2+2=5), then you have the right to voluntarily return, but are not required to. Article 137 of the Labor Code of the Russian Federation. , paragraph 3 of Art. 1109 of the Civil Code of the Russian Federation). Also an example from jurisprudence

    Valentina Osipova

    Salary from previous job. Good day. I quit my job, but the accounting department apparently did not untie my bank work card and I received an advance and a salary within a month and a half. fee (3 thousand + 3 thousand + 3 thousand). Today I drove up to the director from a previous job and informed him of such a case. Later he called back and confirmed this fact. And he asked the question: How long will I be able to return these 9 thousand. The fact is that I withdrew the first 6 thousand and spent it (I thought it was normal and the 13th salary came or some other bonus) and the last 3 thousand are on the card. I have two options: Or give these 3 thousand and every month give them the remaining 6 thousand in installments, Or give them 3 thousand and that's all (do not give 6). The thing is, I'm on probationary period new job from. I have a trainee here, I don’t really want to give them 6 thousand from it, even in parts. The real question is, can I legal grounds don't give them the money? I know there is a law on unjust enrichment. Does it fit my situation?

    • Lawyer's response:

      you have the right not to give back, because it is their mistake You can recover an overpaid salary from an employee if: the overpayment occurred as a result of a counting error; the employee’s guilt is proven in failure to comply with labor standards or in idle time (these circumstances must be established by the commission on labor disputes or the court); the error was caused by the misconduct of the employee himself. For example, if he submitted incorrect documents for standard tax deductions to the accounting department (this circumstance must be confirmed by the court). Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an erroneously issued salary cannot be withheld from an employee - he can reimburse it only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation). In particular, it is impossible to recover an overpaid salary from an employee if the overpayment occurred as a result of a technical error (ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17).

    Galina Fedorova

    The individual entrepreneur has the right to recover through the court from the employee, whom he fired in 2013, the amount of salary overpaid in 2012?

    • Lawyer's response:

      No. Train has already left. In general, to begin with, figure out: whose fault is it and whether they have the right to collect your salary at all. If this is an accounting error, let them be withheld. It is possible to recover an overpaid salary from an employee if: - the overpayment occurred as a result of a counting error; – the fault of the employee in non-compliance with labor standards or in idle time has been proven; - the error was caused by the illegal actions of the employee himself. For example, if he submitted the wrong documents to the accounting department. Such rules are established by article 137 of the Labor Code of the Russian Federation. In other cases, an employee can reimburse an erroneously issued salary only at his own request (clause 3 of article 1109 of the Civil Code of the Russian Federation).

    Oksana Alekseeva

    Question. The organization paid the employee the wrong salary. It turned out that he owed the company. Can we withhold the overpaid amount from his salary next month?

    • Lawyer's response:

      Legislation allows you to withhold an erroneously paid salary in the event of an accounting error by an accountant (Article 137 of the Labor Code of the Russian Federation). However, a counting error is understood as an error in calculating the amount of salary (i.e., an arithmetic error in the calculations) (determination of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17). The head of the institution must issue an order on the recovery of overpaid wages (letter of Rostrud dated August 9, 2007 No. 3044-6-0). An order must be issued no later than one month from the date of expiration of the deadline set for the employee to return the overpayment. If such a period was not set for the employee, the order must be issued no later than a month after the discovery of excessive payment of wages. Withholding is possible only if the employee does not dispute the fact and amount of the overpayment. This conclusion follows from Article 137 of the Labor Code of the Russian Federation. In addition, in order to avoid disputes with the labor inspectorate, you can draw up a memorandum justifying the reason for withholding the overpayment.

    Nadezhda Lebedeva

    For 4 months, they incorrectly handed out a salary of 2,000 more. did not make an advance payment to the computer) then they calculated it immediately for 4 months, is there such a right to calculate?

    • Lawyer's response:

      The money must be returned According to article 137 of the Labor Code, the employer has the right to withhold from the employee's salary amounts overpaid to him due to accounting errors. The decision to withhold the administration of the enterprise may be made no later than one month from the date of expiration of the period established for the return of incorrectly calculated payments, provided that the employee does not dispute the basis and amount of the deduction.

    Claudia Markova

    there is a question. hello! I was on vacation in February (vacation was provided according to the schedule approved by the personnel department), today, when applying for dismissal in the settlement department, they told me that there would be a deduction in the amount of ~ 7,000 rubles for "advance taken vacation". Does the company have such actions?

    • Lawyer's response:

  • Daria Kozlova

    I quit on October 9, I owed 860 rubles. explained by the fact that it is connected with the vacation pay that I received in June. in kindergarten she worked for three years, every year she went on vacation in the summer, this too since July, she quit on October 9th and owed 860 rubles. I don't understand why it has to do with holidays.

    • Lawyer's response:

      According to Article 137 of the Labor Code, deductions from the employee's wages are made upon dismissal of the employee before the end of the working year in which he has already received annual paid leave, for unworked vacation days. It turns out that you were on vacation for the working periods from 11/21/2005 to 11/20/2006, from 11/21/2006 to 11/21/2007, from 11/21/2007 to 11/20/2008 and from 11/21/2008 to 11/20/2009. In July 2009, you received leave in advance and, upon dismissal, did not complete your full-time work for 1 month and 12 days. During this time, they withheld this amount from you.

    • Alexey Babaevsky

    Can an employer deduct money from salary for incorrectly issued last year's vacation?

    • Lawyer's response:

      What is wrong with last year's vacation? Overpaid? If yes, why, for what reason? A question posed incorrectly or with incomplete information in it leads to an incorrect answer. The grounds and procedure for deduction by the employer from the employee's wages of monetary amounts are set out in Art. 137 of the Labor Code of the Russian Federation. Due to the fact that in your question there is no completeness of information that allows you to correctly assess the situation and give a qualified answer, I suggest that you carefully read the article I mentioned above. In general, I will add the following: Wages overpaid to an employee (including in case of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: - counting error; - if wages were overpaid to the employee in connection with his illegal actions established by the court. The employer has the right to make a decision to deduct from the employee's salary no later than one month from the date of expiration of the period established for repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of deduction. In your case, the deadlines for the legitimacy of the deduction by the employer from your salary of monetary amounts have passed and, obviously, the employer incorrectly applied the law when accruing vacation pay to you. If the employer nevertheless withholds the money, then I advise you to immediately contact the State Labor Inspectorate, the ZelAO prosecutor's office or the court. I advise you to file a complaint with the prosecutor's office and the State Labor Inspectorate in Moscow at the same time.

    Zhanna Volkova

    the financier overpaid the salary, the employee refuses to return it. How to be?

    • Lawyer's response:

      Deductions from the employee's wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws. So, according to Article 137 of the Labor Code of the Russian Federation, deductions from the employee's salary to pay off his debt to the employer can be made: to compensate for the unworked advance payment issued to the employee on account of wages; to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for the consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime; upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked days of leave. Deductions for these days are not made if the employee leaves, for example, in connection with the liquidation of the organization, downsizing or conscription of the employee for military service, the recognition of the employee as completely disabled in accordance with a medical report, the onset of emergency

    Pavel Petreykin

    Am I obligated to do work if it is not part of my official duties, but. the head of the department obliges by order, and in case of non-compliance, a fine of 50% of the salary???

    • Lawyer's response:

      You are not obliged to perform work that is not part of your job duties, since in accordance with the law, the employee has the right to perform work stipulated by the employment contract, and the employer is prohibited from demanding work from the employee that is not stipulated by the employment contract. As for the fine, firstly, a monetary fine is not a disciplinary sanction, and by virtue of Art. 192 of the Labor Code should not apply. Second, overlay disciplinary action for refusing to perform work that is not part of the official duties of the employee, illegally. Thirdly, Article 137 of the Labor Code defines an exhaustive list of cases in which an employer can deduct from an employee's wages, which does not include the imposition of a fine for failure to perform certain work. If you do not want to do someone else's work, then take advantage of articles 379 and 380 of the Labor Code, according to which you can, by notifying the employer in writing refuse to perform work that is not related to your job duties.

    Zhanna Nikitina

    Is it legal to deduct money from an employee's salary to form a reserve vacation fund for this employee

    • Lawyer's response:

      It's illegal. All these funds, as well as others, which he deems necessary to create, the employer creates independently. Such a deduction from wages may be possible, but only with the voluntary will of the employee himself. However ... which of the workers, being in a sober mind and blessed memory, will go for it? The employer has the right, and, in some cases, is obliged to make deductions from the employee's wages only in strictly defined cases specified by law. These include: Income tax withholding; Deductions under executive documents. Deductions based on Article 137 of the Labor Code of the Russian Federation: to compensate for an unworked advance payment issued to an employee on account of wages; to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases; to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for the consideration of individual labor disputes recognizes the employee's guilt in non-compliance with labor standards or downtime; upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of the Labor Code of the Russian Federation. In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction. Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: a counting error; if the body for the consideration of individual labor disputes recognizes the fault of the employee in non-compliance with labor standards or idle time; if wages were overpaid to the employee in connection with his illegal actions established by the court.

    Diana Morozova

    I took vacation in advance, but I had to quit, they demand to return part of the vacation pay, can I work off this amount?

    • The ideal option is when the employee will work for some time after the vacation. Then, having calculated his salary, the accountant will set off the unearned amounts and adjust the accrued taxes. But another situation is also possible: the employee does not return ...

    Oksana Ivanova

    how to be?. hello! please tell me what to do in this situation ... I work in a large firm as a sales assistant, everything was fine, everything seems to suit me, but recently I accidentally dropped 2 monoblocks from the window, the company has a markdown store and they were sent there They said that I should pay for their markdown. for these 2 monoblocks they counted me 30,000 rubles. so, they deduct 10,000 from me every month, everything seems to be fine, when suddenly they tell me that one of the monoblocks was sent to the service center, and that something is wrong with it, and now they want to deduct from me the repair of the monoblock, or pay the difference and say you can take it to yourself. the question is, can the company deduct something else from me? after all, when they discounted the monoblock, they didn’t find anything else and I only paid for its dents and small defects that are visible to the naked eye. further, did I have to pay for them at all, because I didn’t drop them on purpose, but the goods are in an open display and everyone can drop them. please justify the answer. thanks in advance!

    • Lawyer's response:

      It is possible to return the overpaid amount of wages only in court. Indeed, according to Art. 137 of the Labor Code of the Russian Federation, funds can be withheld only from the wages of employees working in the organization at the time of detection of a counting error. Since the employment relationship with the resigned employee has been terminated, the specified provisions of the labor legislation do not apply to him. That is why it is possible to recover money only in the manner and on the conditions provided for by civil law. Only through the court they can recover, but is this money worth it for them? 60 "Obligations due to unjust enrichment" of the Civil Code of the Russian Federation.

    Lydia Zaitseva

    Does the organization have the right to demand the return of the issued calculation? the accountant counted incorrectly, but missed after 7 months

    • Lawyer's response:

      Everything is completely illegal. Since, firstly, deductions from an employee's salary can be made by the employer only on the grounds provided for in Article 137 of the Labor Code. So, according to the norms of this article, the amount of overpaid wages can be withheld from the employee if the accountant made a counting error. A counting error should be understood as errors made in the calculation of wages, but not in its double calculation, for example, if wages were received at the cash desk and the second time it was credited to the salary card, and even more so, the calculation of wages and vacation pay at the same time is not countable mistake, and inattention in this case, it is unlawful to make deductions from the employee. secondly - In accordance with Article 137 of the Labor Code, the employer has the right to decide to withhold the overpayment from the employee's salary no later than one month from the expiration date for the return of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of the deduction. Thus, at least they should have notified you of this in writing, also attaching to this notice an act of the commission confirming that the overpayment was due precisely to a counting error. thirdly, when withholding overpaid wages, for some reason they firmly forgot about the norms of Article 138 of the Labor Code, which states that the total amount of deductions when paying wages cannot be more than 20 percent.

    Eduard Proschalygin

    Please tell me. How to calculate vacation pay. The company paid me the wrong salary. paid 2.5 times more than they should have. Now the accountant decided to keep. And I received 15% of my salary for October. The whole horror is that I found out about it only after I saw my salary. Does the accountant have the right to do so? In fact, I was left without money. Is it my fault? Why should I pay for this.

    • Lawyer's response:

      Everything is completely illegal. Since, firstly, deductions from an employee's salary can be made by the employer only on the grounds provided for in Article 137 of the Labor Code. So, according to the norms of this article, the amount of overpaid wages can be withheld from the employee if the accountant made a counting error. A counting error should be understood as errors made in the calculation of wages, but not in its double calculation, for example, if wages were received at the cash desk and the second time it was credited to the salary card, and even more so, the calculation of wages and vacation pay at the same time is not countable mistake, and inattention in this case, it is unlawful to make deductions from the employee. secondly - In accordance with Article 137 of the Labor Code, the employer has the right to decide to withhold the overpayment from the employee's salary no later than one month from the expiration date for the return of incorrectly calculated payments, and provided that the employee does not dispute the grounds and amounts of the deduction. Thus, at least they should have notified you of this in writing, also attaching to this notice an act of the commission confirming that the overpayment was due precisely to a counting error. thirdly, when withholding overpaid wages, for some reason they firmly forgot about the norms of Article 138 of the Labor Code, which states that the total amount of deductions when paying wages cannot be more than 20 percent. So if I were you, I would write to the head of the organization with a request for additional accrual of 65% of wages, since in accordance with Article 138 of the Labor Code of the Russian Federation, the amount of deduction could not be more than 20% at a time, you can also list all other facts of violations in the application admitted to you.

    Vladislav Yankov

    What should I do if I do not want to sign an agreement on trade secret?. 2 months after the employment, they brought me a non-disclosure agreement for trade secrets. I was embarrassed by several wordings that whether or not the fact of disclosure of information will be proven, a fine of 10 minimum wages is imposed on the employee. I refused to sign this contract. And she asked me to take her version of the contract in order to consult with a lawyer. I was denied. What to do and how to act in this situation? If they threaten to fire me...

    Zinaida Pavlova

    Can the LLC lower the salary in order to reimburse the money to the budget?. LLC squandered 3 billion rubles from the city budget, in connection with this, they want to reduce the wages of employees by 25-30%, in return for this money to the budget, can you do this?

    • Lawyer's response:

      Alina, in accordance with Article 3 of the Federal Law of the Russian Federation No. 14-FZ of February 8, 1998 "On companies with limited liability"(hereinafter referred to as the Law), the company is liable for its obligations with all its property. And according to Article 44 of the Law, members of the board of directors ( supervisory board) of the company, the sole executive body (head) of the company, members of the collegial executive body companies, as well as the manager, are liable to the company for losses caused to the company by their guilty actions (inaction), unless other grounds and amount of liability are established by federal laws. That is, they will not be liable for transactions that caused damage to society if it is proved that they acted in the interests of society within a reasonable business risk, that is, when there were real, calculated reasons to expect a positive result. In the event that liability is assigned to several persons, then their liability to the company will be joint and several in accordance with Art. 323 of the Civil Code of the Russian Federation. At the same time, members of the board of directors (supervisory board) of the company, members of the collegial executive body of the company who voted against the decision that caused losses to the company, or who did not take part in the voting, are not liable. If the waste of budgetary funds by LLC was the result of evading accounting in the manner prescribed by the legislation of the Russian Federation and regulations bodies that regulate accounting, distortion of financial statements and non-compliance with the deadlines for its submission and publication, then in accordance with Art. 18 of Federal Law No. 129-FZ, criminal or administrative liability is borne by the head and / or other persons (for example, Chief Accountant) . Let the head of your LLC not err on his own account. Indeed, according to Art. 6 of the Law, in any case, the heads of organizations are responsible for the organization of accounting in organizations, compliance with the law when performing business operations. In essence, the measure planned by the head of the LLC does not indicate a decrease in the wages of the employees of the LLC, but a deduction from their wages, which will be a direct violation of the requirements of the articles. 137 and 138 of the Labor Code of the Russian Federation. Thus, a reduction in wages for employees due to the waste of budget funds by LLC will not be lawful, and if this happens, you will have the right to apply for the restoration of violated rights to the labor inspectorate in Moscow and / or the prosecutor's office.

The text of article 137 of the Labor Code of the Russian Federation in a new edition.

Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.

Deductions from the employee's salary to pay off his debt to the employer can be made:
to reimburse the unworked advance payment issued to the employee on account of wages;
to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code) ;
upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.
In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.

Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:
counting error;
if the body for the consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);
if wages were overpaid to the employee in connection with his illegal actions established by the court.

N 197-FZ, Labor Code of the Russian Federation, current edition.

Commentary on Art. 137 of the Labor Code of the Russian Federation

Comments on the articles of the Labor Code will help to understand the nuances of labor law.

§ 1. Deductions from an employee's wages, which are made in cases provided for by other federal laws, primarily include tax deductions.

On January 1, 2001, the Tax Code of the Russian Federation came into force, the original version of which was significantly amended by the Federal Law of December 29, 2000 N 166-FZ (SZ RF. 2001. N 1 (part II). Art. 18 ). In accordance with the Tax Code of the Russian Federation, the tax rate on income individuals is set at 13%, unless otherwise provided by the Labor Code.

§ 2. Other cases provided for by federal laws, when deductions from wages are allowed, include: deductions under executive documents when an employee is serving correctional labor; collection of alimony for minor children; compensation for harm caused by an employee to the health of another person, and in the event of the death of this person - to family members who suffered damage in connection with the death of the breadwinner; compensation for damage caused by a crime, and other cases expressly specified in laws. In these cases, the employer is obliged to comply with the decision of the judicial authority.

§ 3. The Code protects wages from unjustified deductions by establishing an exhaustive list of cases in which the employer has the right, at his own order, to make them from the wages due to the employee. This list includes a number of grounds provided earlier in Art. 124 of the Labor Code of the Russian Federation and newly introduced ones. Moreover, in all cases, the purpose of such deductions is the same - to pay off the employee's debt to the employer. The employer has the right to make deductions: to return the advance payment not worked out by the employee, issued to him on account of wages; to pay off an unspent and not returned in a timely manner an advance received by an employee in connection with a business trip or transfer to work in another locality (in other cases, the employee receives under the report amounts of money that he did not spend and did not return); to recover amounts overpaid due to accounting errors.

Among the grounds that give the employer the right to make deductions from wages, the Code includes the return of overpaid wages to the employee in case of recognition of his guilt in failure to comply with labor standards or idle time, when the fault of the employee is established by the body for the consideration of individual labor disputes.

In all the above cases, the employer has the right to make deductions only within the established period of time - no later than one month from the date of expiration of the period established for the return of an advance, repayment of debts or incorrectly calculated payments. Deductions within this period are allowed if one more condition is met - the employee does not dispute the grounds and amounts of deductions.

§ 4. As an independent basis for deductions from wages due to an employee, as before, the Code provides for the dismissal of an employee before the end of the working year in which he has already received annual paid leave, for unworked vacation days. This provides for a number of exceptions when deductions are not made. As a new basis, dismissal is provided for under paragraph 8 of Art. 77 TK. Other exceptions, as before, include dismissal due to: liquidation of the organization or termination of activity by the employer - an individual (clause 1 of article 81); reduction in the number or staff of employees of the organization (paragraph 2 of article 81); inconsistency of the employee with the position held or work performed due to the state of health in accordance with the medical report (subparagraph "a", paragraph 3 of article 81), is now not included among the grounds for exempting the employee from deductions from wages due to him, since this ground for dismissal is not provided for in the new version of Art. 81 TC; with a change in the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant); conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, article 83); reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (paragraph 2 of article 83); recognition of an employee as completely disabled in accordance with a medical report (clause 5, article 83); the death of an employee or employer - an individual, as well as the recognition by the court of an employee or employer - an individual as dead or missing (clause 6 of article 83); the onset of extraordinary circumstances that prevent the continuation labor relations if this circumstance is recognized by a decision of the Government of the Russian Federation or a body state power the corresponding subject of the Russian Federation (clause 7, article 83). In the new edition, the exceptions listed above are also supplemented by dismissal under paragraph 8 of Art. 77 TK.

Dismissal at the initiative of an employee for good reasons (in connection with admission to study, retirement, and in other cases) is no longer an exception when deductions for unworked vacation days are not made.

§ 5. A new basis, giving the employer the right to make deductions from wages at his own disposal, is recognized as excessive payment to the employee in connection with his illegal actions. At the same time, the employer can make a deduction only if the illegal actions of the employee are established by the court.

§ 6. It is not allowed to deduct from the wages of an employee by order of the employer in cases other than those provided above. So, an employee cannot be charged wages that were overpaid to him due to the incorrect application of laws or other regulatory legal acts, for example, the amount of the rate (salary) for staffing or scheme official salaries; incorrectly defined tariff category etc.

§ 7. The commented article does not contain one more ground for deduction from the employee's wages by order of the employer, provided for by the Code. This is the recovery from the employee of the amount of damage caused through his fault, not exceeding the average monthly earnings (see commentary to Article 248).

The next commentary on article 137 of the Labor Code of the Russian Federation

If you have questions under Art. 137 of the Labor Code, you can get legal advice.

1. Deductions from an employee's wages may be made only in cases stipulated by the Labor Code or other federal laws. The prohibition on deductions, in addition to the cases established by law, ensures the protection of the wages of employees.

2. The content of the commented article corresponds to the provisions of the ILO Convention N 95 "On the protection of wages" (adopted in Geneva on July 1, 1979). Article 8 of the said Convention provides that deductions from wages may be made under the conditions and within the limits prescribed by national legislation or determined in collective agreements or in decisions of arbitral tribunals. Workers should be advised of the conditions and limits of such deductions. It is important to emphasize that Russian legislation does not provide for the possibility of deductions from wages on the basis of a collective agreement, since such conditions would worsen the position of the employee in comparison with the law.

No deductions are allowed at the discretion of the employer related to the imposition on the employee of part of the production costs, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee

3. Currently, other codes and federal laws establish the possibility of deductions from wages when levying taxes on personal income, when collecting fines as a criminal punishment, when serving a sentence in the form of corrective labor, when executing court decisions.

4. Deductions for the purpose of levying tax on personal income are made in accordance with the Tax Code. Article 226 of the Tax Code provides that organizations from which the taxpayer receives income are required to calculate, withhold from the taxpayer and pay the amount of the accrued tax on the income of individuals. These deductions must be made directly from the income of the taxpayer when they are actually paid. However, the amount of tax withheld cannot exceed 50% of the amount of the payment.

5. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Penal Code, a person sentenced to a fine is obliged to pay it within 30 days from the date the sentence enters into force, or at another time if the court decides on an installment plan. A convicted person who has not paid a fine within the prescribed period is recognized as maliciously evading the payment of a fine, and if the fine is established as an additional type of punishment, the bailiff collects the fine by force (Article 32 of the Penal Code). At the same time, one of the enforcement measures is the foreclosure of wages in accordance with Ch. 12 of the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings".

6. Deductions by virtue of a court decision are also made when an employee is serving correctional labor as a punishment for a criminal offense. The basis for the production of such deductions is the verdict of the court. In accordance with Art. 40 of the Penal Code, deductions are made from the salary of the convicted person in the amount established by the court verdict. The correct and timely deduction from the wages of the convicted person and the transfer of the amounts of deduction in the prescribed manner are assigned to the employer. The procedure for the production of deductions is established by Art. 44 PEC.

7. Deductions from wages are also possible on the basis of executive documents - writ of execution issued on the basis of a decision, sentence, ruling and decision of courts (judges); settlement agreements approved by the court; court orders, etc. In accordance with Art. 98 of the Federal Law "On Enforcement Proceedings", wages may be levied in the execution of executive documents containing a requirement to collect periodic payments; when recovering amounts not exceeding 10 thousand rubles; in the absence or insufficiency of the debtor Money and other property to fulfill the requirements of the executive document in full. Writs of execution and other executive documents are sent to the employer for recovery.

8. The Labor Code provides for the possibility of deductions from wages to pay off the employee's debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as in order to compensate the employee for property damage caused to the employer.

On the procedure for compensation by the employee of property damage caused to the employer, see Art. 248 of the Labor Code and commentary to it.

9. An employee's debt to the employer may arise as a result of an advance paid to the employee on account of wages or in connection with a business trip or transfer to work in another locality. In the event that the employee has not worked off such an advance or has not used the amount issued in advance for the purposes of a business trip or moving to another area and does not return it voluntarily, its amount may be deducted from the employee's salary.

For amounts issued to an employee on business trips, see Art. 168 TC and commentary to it.

10. An employer's order to withhold an advance from wages may be made if two conditions are met: 1) the employee does not dispute the grounds and amounts of deductions; 2) the order is made no later than one month from the date of expiration of the period established for the return of the advance.

The employee's objections to the grounds and amounts of deductions must be expressed in writing. At the same time, he may refer to the illegality or groundlessness of the return of the indicated amounts, as well as to the incorrect determination of their amounts.

The monthly period starts from the day set for the return of the advance.

When returning an unworked advance payment issued on account of wages, such a period is established by agreement of the parties to the employment contract.

For an advance issued for a business trip, the return period is three working days after the employee returns from a business trip (clause 26 of the Regulations on the Peculiarities of Sending Employees on Business Trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749).

11. Debt to the employer may also arise in the event of payment of excessive amounts to the employee due to a calculation error. Counting error should be understood as an error in arithmetic operations when calculating the amounts payable. An employer's order to withhold from wages amounts overpaid due to a counting error is possible in the absence of a dispute with the employee about the grounds and amounts of these deductions, provided that the order is made within a month from the date of payment of incorrectly calculated amounts. If the employer misses a month, the amounts overpaid to the employee may be recovered in court.

Are not the result of an accounting error and are not subject to reimbursement of amounts overpaid due to incorrect application of legislation on remuneration, a collective agreement, an agreement or an employment contract, as well as errors of an organizational and technical nature (for example, when re-transferring funds to an employee’s bank account ). See also Determination of the Armed Forces of the Russian Federation of January 20, 2012 N 59-B11-17.

12. Amounts overpaid to an employee in the event that the body for consideration of an individual labor dispute recognizes the guilt of the employee in non-fulfillment of production standards or in idle time are subject to withholding.

For wages in case of non-fulfillment of production standards, see Art. 155 of the Labor Code and commentary to it.

For wages during downtime, see Art. 157 of the Labor Code and commentary to it.

13. The sums paid to the employee as payment for vacation are subject to deduction in case of his dismissal before the end of the working year for which the vacation was granted.

For the procedure for granting holidays, see Art. 122 TC and commentary to it.

In case of dismissal of an employee before the expiration of the working year for which the leave is granted, deductions are made at the final settlement with the employee. This rule does not apply when an employee is dismissed on the grounds provided for in paragraph 8 of Art. 77, paragraphs 1, 2, 4 of Art. 81, paragraphs 1, 2, 5 - 7 of Art. 83 TK.

14. Amounts overpaid to an employee in connection with his illegal actions established by the court are subject to withholding. For this type of deduction, the commented article does not provide special rules. Since the illegality of the employee's actions has been established by the court, the amount to be withheld is also established in court. The deduction itself in this case is carried out according to the rules established for deductions on the basis of a court decision.

"Legislation and Economics", 2009, N 5
ARTICLE 137 OF THE LABOR CODE OF THE RUSSIAN FEDERATION: PRACTICAL ASPECT
Practice has shown that among labor conflicts, which occupy a significant place in a number of reasons that give rise to a labor dispute between an employer and an employee, their disagreements in assessing the legality of the former withholding money from the latter's wages stand out. The emergence of such disagreements is largely facilitated by the ambiguous presentation of the norms contained in Art. 137 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation or the Code). It also does not contribute to mutual understanding and the deduction by the employer from the salary (hereinafter referred to as the salary) of the employee of the amounts, the amount of which is determined in the local act of the employer, created in order to maintain labor discipline. The totality of these problems has become the reason for the study of the norms of labor legislation governing this type of labor relations.
Types and methods of recovery and retention
To conduct a hold, i.e. failure to accrue any part of the salary payable to the employee and transfer it to the proper person, it is necessary for the employer or other authorized body to make a decision to recover from the employee the amounts specified by law. In this regard, the penalties are divided into those made according to the law, indisputable, including the executive inscription, court decisions, administrative according to the instructions of state bodies and officials who are given the discretionary right to impose fines, write off or otherwise collect from the money available to citizens. funds of the amount, as well as the debt formed behind them in the amount established by law.
And if in practice most types of penalties do not cause the employer's representatives to explain to them the rules for their implementation, then their type, as indisputable (including by executive inscription), requires a detailed clarification of its legal essence. So, in jurisprudence, recovery in an indisputable manner is understood as the forced collection of sums of money that formed the debt of the obligated person (debtor) to the recoverer, by deducting them from the funds belonging to the debtor (including an individual), in order to compensate for this debt without applying to the authority resolving property disputes. Recovery in an indisputable manner is allowed only in cases expressly provided for by law, and only officials and the bodies named therein. Recovery under an executive inscription is one of the special cases of indisputable collection from the debtor of a certain amount of money due to the recoverer; it is carried out on the basis of a notary's order made on a genuine debt document. Thus, collection in an indisputable manner is one of the types of collections made by the compulsory method, and only in cases where the debtor does not repay the debt that has arisen for him voluntarily. In turn, withholding is a way of implementing the recovery and ensuring the fulfillment of the obligations of the debtor.
All possible deductions from an employee's salary can be divided into the following three groups of his obligations established by federal law to:
- by the state (for example, payment of taxes, fines, etc. - Art. 138 of the Labor Code of the Russian Federation);
- citizens, public organizations and legal entities (for example, under executive documents for the recovery of alimony, compensation for harm, as well as for repaying loans, transferring contributions, etc. - Article 138 of the Labor Code of the Russian Federation);
- the organization in which he works (Article 137 of the Labor Code of the Russian Federation).
Let's analyze the last group of holds. Its characteristic feature is the following: a representative of the employer, who has the right, on the basis of local entitlement acts, to decide on the retention of those specified in Art. 137 of the Labor Code of the Russian Federation of the types of his debts to the employer, issues an order (order) to collect a certain amount of debt from the employee’s salary and himself implements this decision by not accruing these amounts for payment.
General and private positions of the legislator on withholding amounts
from the employee's salary
So, the rules on the possibility of withholding from the employee’s salary any funds due to him in a voluntary, administrative, indisputable or judicial manner are placed by the legislator in Art. Art. 137 and 138 of the Labor Code of the Russian Federation. However, the content of the latter requires a separate study. As indicated in Part 1 of Art. 137, deductions from the employee's salary are made only in cases provided for by the Code and other federal laws. Thus, deductions from an employee's salary based on other acts located in the legal hierarchy below the federal law (for example, local ones) are illegal. If the employee disagrees with the penalties on the basis of local acts, the amounts withheld by the employer are subject to return either voluntarily or involuntarily. It is possible to force the employer to return (additionally accrue) the amounts withheld (recovered) by him unlawfully by the decision of the bodies considering individual labor disputes (hereinafter - ORITS; Art. 382 of the Labor Code of the Russian Federation), as well as by the relevant instructions of the prosecutor (part 4 of Art. 353 of the Labor Code of the Russian Federation) or a labor inspector (Articles 356 and 357 of the Labor Code of the Russian Federation).
In part 2 of Art. 137, the cases of the employee's debt to the employer, allowing it to be deducted from his salary, include the following:
- reimbursement of the unworked advance payment issued to the employee on account of the salary;
- repayment of an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
- refund of amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the ORITS recognizes the employee’s guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or downtime (part 3 of article 157 of the Labor Code of the Russian Federation );
- refund of amounts for unworked days of vacation, which is made upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 or paragraph 1, 2 or 4, part 1 of Art. 81, paragraphs 1, 2, 5, 6 and 7, part 1 of Art. 83 of the Labor Code of the Russian Federation.
Only for this group of deductions from the employee's salary, the legislator provided (as an exception to the general rules on mandatory collections related to other groups of deductions) a special procedure for collecting his debts to the employer from the employee, endowing the latter with discretionary powers. The discretion of the employer is expressed in the fact that he, at his own discretion, collects the advance amounts received by the employee, specified in par. 2 and 3 h. 2 tbsp. 137 of the Labor Code of the Russian Federation. In the same way, he may withhold the amount specified in par. 4 hours 2 tbsp. 137, as overpaid to an employee as a result of a counting error.
The discretionary right of the employer extends also to other cases specified in par. 4 hours 2 tbsp. 137, but with significant legal caveats. Withholding on them is possible if the fault of the employee in non-compliance with labor standards or simple is recognized not by the prosecutor or labor inspector, but by the ORITS. This means that the already made remuneration of the employee’s labor in case of his downtime and failure to comply with labor standards did not take into account this legally significant circumstance and amounted to a larger amount than indicated in Part 3 of Art. 155 and part 3 of Art. 157 of the Labor Code of the Russian Federation. In an indisputable manner and even without observing the conditions specified in Part 3 of Art. 137, the legislator allowed the employer to deduct overpaid amounts from the employee's salary in the case specified in par. 5 hours 2 tbsp. 137.
So, in part 2 of Art. 137, a list of cases is given in the event of which the employer has the right (but is not obliged) to make deductions made to pay off the employee's monetary obligations to the organization where he works. Moreover, as indicated in this part of this article, the deduction is made precisely from the employee’s salary in order to cover his debt to this organization that arose as a result of his both lawful and unlawful actions.
We note right away: for all those listed in Part 2 of Art. In 137 cases, the Labor Code of the Russian Federation does not impose on the employer the obligation to notify him of their recovery in advance of deducting any amounts from the employee's salary. The performance of this noble deed seems to be self-evident, but the theoretical presumption of the employer's good faith is rarely confirmed in practice. Consequently, the employee will become aware of the withholding of these amounts, as a rule, on the day of receipt of the salary (in a smaller amount than he planned). Another option is possible if the amount is insufficient (subject to the rules of Article 138) for the employer to fully recover the overpaid amounts at a time, when the employee finds out that he has a debt to the employer, but already from the document he received, for example, a payslip issued on the day salary payments (part 1 of article 136).
In the above situations, the employee must either, having received a smaller amount accrued to him by the employer than he expected, immediately apply to him in writing with a request for its recalculation, or refuse to receive it altogether, thus expressing his disagreement with the withholding made. In this situation, the employer needs to draw up an act of refusal, which will be evidence of his attempt to fulfill his obligation to pay wages. Otherwise, the employee will have the opportunity to hold the employer liable through the ORITS for incorrectly accrued and not timely paid wages. But this can happen only if in favor of the employee there is a solution to the dispute about the right to amounts not additionally accrued to him by the employer (Articles 236 and 237 of the Labor Code of the Russian Federation).
In part 3 of Art. 137 the legislator established: in the cases provided for in par. 2, 3 and 4, paragraph 2 of this article, the employer has the right to make a decision to deduct from the employee's salary no later than one month from the expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and holding sizes. Therefore, these rules do not apply to par. 5 part 2 of this article, talking about the return of amounts for unworked vacation days. It is for this case that the employer is not required to meet the deadlines or find out from the employee his intentions to challenge the grounds and the amount of deduction for the advance vacation, since the employer does not have time for this due to the connection of this type of deduction with the moment of dismissal of the employee. Nevertheless, it should be taken into account that the same circumstances may arise for any other deductions, but the legislator ignores the possibility of their real occurrence for some reason.
Regarding other grounds for withholding the employee's debt, listed in Part 2 of Art. 137, the following should be noted. Neither in the Labor Code of the Russian Federation, nor in other regulations related to these types of deductions (except for a business trip report), is there a deadline for either literally voluntary or mandatory, but at will, the employee's return of the amounts of debt formed behind him. Thus, the legislator deprived the employer of the opportunity to act in the manner prescribed by Part 3 of Art. 137, because he does not have a reference point, from which it is necessary to calculate the monthly period permissible for the collection of a debt in an indisputable manner or in another compulsory way. Moreover, applied in part 3 of Art. 137 The meaning of the term "indisputable penalty" is clearly ambiguous. In the absence of a written, and therefore only implied duty of the employer in part 3 of this article to find out from the employee whether he will dispute with him or in the ORITS the basis and amount of the planned deduction, it is completely inappropriate to talk about the indisputable order of these penalties, and this is in a situation where the worker practically cannot know about them in advance.
Let us assume that the employee is informed about it in advance of the deduction and agrees with the basis and amount of his debt, but, as it turned out, prefers to pay it off himself when he has a material opportunity. Since such a case is not taken into account by the legislator and the deadline for voluntary or mandatory self-repayment of the debt is not established, the employee can repay his debt for an immense time. Therefore, the rule of Part 3 of Art. 137 is valid if the deadline for voluntary or mandatory self-return is set, i.e. this rule applies only to the case of advance travel. This means that if the employer's order to withhold the debt is not made within a month from the date of expiration of the period set for the return of the advance (for example, on a failed business trip), the employer loses the right to recover the relevant amounts in an indisputable manner based on his decision. If, in violation of the procedure (exceeding the deadline and (or) the employee’s disagreement with the deduction), the employer withholds the amount of the debt, then this recovery will be unlawful, which will oblige the employer to return the withheld amount voluntarily, and in case of refusal - by force.
Based on the foregoing, the recovery of sums of money, when the employee disputes the basis and amount of the deduction for the repayment of almost any type of advance, as well as when the employer misses a monthly period, compensation for these amounts can be made only by a court decision, which, as will be shown below, is also problematic (Art. 386 and 387 and part 2 of article 392 of the Labor Code of the Russian Federation). Nevertheless, the employer should not forget that there is still a list of documents for which debt collection is carried out in an indisputable manner on the basis of executive inscriptions of bodies performing notarial acts, approved by the Resolution of the Council of Ministers of the RSFSR of March 11, 1976 N 171 (as amended. dated December 30, 2000), which indicates the following types of debts of an employee arising from labor relations:
- an unworked advance payment issued on account of a salary, a lump-sum allowance, travel expenses and daily allowances issued to him when concluding, in the order of an organized recruitment, an employment contract for work in industry, construction or transport due to non-arrival at the place of work;
- the amount of money for the bedding given to him and not returned to him upon dismissal from work;
- the amount of money for uniforms left behind by the dismissed employees of associations, institutions, enterprises, organizations in which the wearing of uniforms has been introduced;
- the amount of money assigned to financially responsible employees of associations, state, cooperative and public organizations, enterprises and institutions, in the event of the dismissal of these employees and the issuance of obligations by them to repay the specified debt.
The employer needs to know that when deducting, on the basis of the notary's writ of execution, the amount of debt due to him from the debtor, he must comply with the rules on the term of circulation, types of documents provided to the notary and other organizational requirements, and also take into account the procedure for enforcement, defined in section. VII Civil Procedure Code of the Russian Federation.
In part 4 of Art. 137, the legislator determined that wages overpaid to an employee (including in case of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases:
- counting error (paragraph 4, part 2, article 137);
- if the ORITS found the employee's fault in failure to comply with labor standards (part 3 of article 155) or idle time (part 3 of article 157) (paragraph 4 of part 2 of article 137);
- if the salary was overpaid to the employee in connection with his illegal actions established by the court.
Among those listed in Part 4 of Art. 137 exceptional cases when it is possible to recover overpaid wages, there are no most cases from part 2 of the same article, except for the cases contained in its par. 4. In part 4 of Art. 137 there are no such types of debt repayment as:
- reimbursement of the unworked advance payment issued to the employee on account of the salary;
- repayment of an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
- refund of amounts for unworked days of vacation, made upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave.
Therefore, already in part 4 of Art. 137 the legislator either changed his mind about making deductions from these three types of excessively made payments, or allowed rule-making negligence, creating an intra-article conflict of norms and a logical inconsistency between part 2 and part 4 of this article.
In the absence of a special (labor-legal) definition of the concepts of "withholding" and "recovery" in the Labor Code of the Russian Federation, they are used either in their general legal meaning, or in the general literary one, which is given to them in explanatory dictionaries of the Russian language. With any of these approaches, the words "withhold" and "recover" in the context of Art. 137 of the Labor Code of the Russian Federation have a relationship with each other as a cause (recover) and a consequence (withhold). Thus, based on the content of Part 4 of Art. 137, the cases listed in par. 2, 3 and 5 hours 2 tbsp. 137 are not formally exclusive and cannot be deducted from amounts overpaid to an employee. Apparently, in part 4 of Art. 137, the legislator means penalties, decisions on which were not made by the employer, but by other competent authorities, as indicated by the duplication in this part of the article of the cases included in par. 4 hours 2 tbsp. 137, and this further aggravates the possibility of an unambiguous understanding of this article as a whole and requires clarification of the procedure for its application at the level of the Supreme Court of the Russian Federation.
If you interpret part 4 of Art. 137, then the penalties listed in par. 2, 3 and 5 parts 2 are related to cases where deduction is possible if the salary was overpaid to the employee in connection with his illegal actions established by the court. This exceptional case itself involuntarily attracts attention, supplementing the cases listed in part 2 of this article with an unlimited number of cases of overpaid wages to the employee, if the court establishes that this part of it was received by the employee as a result of his illegal actions or inactions.
Concretization of the analysis of norms,
set out in part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the cases listed in par. 2, 3 and 5 hours 2 tbsp. 137 allows at least two conclusions to be drawn.
Firstly, these cases are literally not related to the illegal actions of the employee, as a result of which the salary was overpaid to him, since the employer makes the payments indicated in them, guided by the relevant provisions of the acts regulating labor relations. However, this conclusion is admissible under one condition: unless the employee misled the employer about the rationality of their payment, based on any of his own selfish goals (for example, in connection with the planned operational dismissal after receiving them). Then a rhetorical question arises, to which a priori there is a negative answer: can the employee’s refusal to voluntarily return the overpaid amounts be attributed to the employee’s illegal actions, if for most types of deductions the legislator has not even established a period for mandatory reimbursement of these amounts by the employee?
Secondly, these cases are connected not only with the deduction of overpaid amounts from the salary. They also apply to other payments if debts need to be collected at the final settlement with the employee. For example, the case referred to in par. 5 hours 2 tbsp. 137 is clearly not related only to wages, since here we are talking about all payments that form the amount determined in the final settlement with the resigning employee (part 5 of article 80, part 4 of article 84.1 and article 140 of the Labor Code of the Russian Federation).
In connection with such errors in the rule-making activities of the legislator, we will consider each type of withholding described in Part 2 of Art. 137, separately, we will try to reveal their true meaning and the legal consequences generated by them for the parties to the employment contract. At the same time, in order to simplify a rather critical analysis, we will not take into account the defectiveness of Part 4 of Art. 137 in relation to its part 2, attributing it to "calculative errors of the legislator", and we will consider only the intra-systemic legal connection of Art. 137, limited to its three parts. At the same time, we take into account that the legislator, with the possibility of withholding any of those listed in Part 2 of Art. 137 types of debt formed by the employee to the employer, connects this lawful action with the latter's compliance with the following state guarantees and the procedural rules established in the Labor Code of the Russian Federation:
- the system of basic state guarantees for the remuneration of workers includes a restriction on the list of grounds and amounts of deductions from wages by order of the employer, as well as the amount of taxation of income from wages (Article 130);
- when paying wages, the employer is obliged to notify each employee in writing about its constituent parts due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money payable (part 1 of article 136);
- limiting the amount of deductions from wages (Article 138).
In none of the noteworthy comments to the Labor Code of the Russian Federation, the problems discussed below with the application of Art. 137 did not receive a clear explanation. In addition, in the available specialized literature and in the current materials on the generalization of judicial practice, there are no unambiguous answers to the questions that law enforcement officers have regarding the timing and sources of deductions, their amounts and other related organizational procedures. This state of affairs has developed, apparently, because the application of the norms of both the Code and other by-laws related to this topic raises more questions than these sources of legal regulation contain answers to them.
Analysis of the second paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
The legal mechanism for the implementation in practice of the legislator's instructions on the employer's ability to withhold the employee's debts from his salary on the basis of par. 2 hours 2 tbsp. 137 looks like this. Deductions from the employee's salary to pay off his debt to the employer may be made to compensate for the unworked advance paid to the employee on account of the salary. Legally significant circumstances for the application of this type of withholding (let's call it "salary advance") will be the following:
- the fact that the employee received a salary advance, which, on the basis of Part 6 of Art. 136 was paid to him on account of his potentially due salary in full for work in a particular month, as a result of which it turned out that the final salary was accrued less than the amount of the salary advance already received;
- the lack of legal significance of the reason for the non-payment by the employee of the full amount of the salary, from which the employer established the amount of the salary advance (for example, the employee’s illness, involving him in the performance of public or state duties), when he retained average earnings, or his dismissal from work, etc.
Let me remind you that there is no regulatory requirement for a percentage or other ratio between the size of the salary advance and the amount of the monthly wage established for the employee in the Labor Code of the Russian Federation. As for the Decree of the Council of Ministers of the USSR of May 23, 1957 N 566 "On the procedure for paying wages to workers for the first half of the month", acting in accordance with Art. 423 of the Labor Code of the Russian Federation insofar as it does not contradict the Code, it can hardly be considered applicable to all employees for a number of formal legal grounds indicating its incomplete compliance with the Labor Code of the Russian Federation;
- the period for the employer to make a decision on the forced deduction of the difference between the paid salary advance and the accrued salary cannot exceed one month from the date of expiration of the period established for the voluntary return of the salary advance by the employee. The question immediately arises: in which regulatory legal act is the period for the voluntary return by the employee of the salary advance paid in excess on account of the salary established? The answer to this question is no! Consequently, there is no legal mechanism for withholding this advance, available for its application at the level of the employer, and not the court, which can sometimes afford to apply general legal methods to overcome legal gaps in order to make a decision on withholding this type of employee's debt;
- contestation by the employee of the basis and size of the deduction. This rule requires additional regulation up to the clarification of the legal mechanism for its implementation, at least in by-laws. As already noted, an employee can find out about this type of deduction only on the day the salary is paid and provided that the employer will comply with the rules set forth in parts 1 and 2 of Art. 136. Suppose, at the next payment of salary, its advance exceeded the amount that the employer under the employment contract should have charged the employee, and there are no other payments due to the employee. In this case, the employee’s debt will be indicated on the payslip, and until the day the next salary advance is paid to him or the final payment of the remaining part of the salary at the end of the next month, the employee still has the opportunity to challenge both the amount and the basis of this debt. If the debt was withheld from other payments that do not form the composition of the salary, then what is the possibility of challenging in advance with the employer the size and basis of the deduction of the allegedly overpaid amount already made by him in a real situation? Thus, the defective norms of labor legislation with this type of deduction without alternative lead to the employee's application for the protection of his right to remuneration to the ORITS or administrative bodies.
Analysis of the third paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the norms that determine the rules for deductions from wages on the basis of par. 3 hours 2 tbsp. 137, allows us to say that almost all the problems specific to retention under sec. 2 hours 2 of this article are also inherent in this case. So, this paragraph allows deductions from the employee’s salary to pay off his debt to the employer, formed due to an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases. Such cases can be any so-called issuance of money under the report on account of the salary associated with the acquisition, for example, household inventory for Saturday or stationery or receiving funds for payment in a specialized workshop for refilling cartridges for office equipment, etc.
In contrast to the unresolved problems with the deadline for the previously considered case (paragraph 2, part 2, article 137), here the term for the voluntary and mandatory return of the travel advance by the employee is established in the regulatory legal act and is equal to three working days, calculated from the moment of his return from a business trip to place of permanent employment.
At the same time, the employee is formally obliged to return from a business trip not to his place of residence or registration, but to the place where the organization that sent him on a business trip is located. Ticket fixing requirement vehicle the date of arrival at the location of the organization that sent the employee excludes the possibility of traveling on a business trip in their own transport and walking. Thus, the fixation in the ticket of a different place of arrival of the vehicle than the location of the organization is not recognized as the day of arrival from a business trip, which affects the moment from which the time period for the timely return to the employer of the unspent part of the travel advance received by the employee will be calculated. In accordance with paragraph 26 of the Regulation on the peculiarities of sending employees on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749, the employee, upon returning from a business trip, must submit to the employer within three days not only an advance report on the amounts spent in connection with the business trip , but also to make a final settlement with him on the cash advance issued to him before leaving on a business trip for travel expenses.
Consequently, only three days after the employee returns to work, the employer has the right to withhold the difference between the amount of the issued travel advance and documents confirming the expenditure of funds only partially or not specified in Art. 168 of the Labor Code of the Russian Federation for special purposes. But this is possible provided that, within three working days from the moment of returning from a business trip to work, the employee not only failed to report to the employer on the fully spent amounts of the business trip advance, but also did not voluntarily return the unspent part of it. Then, within a month, the employer must find out from the employee whether it is indisputable for him to have the basis and amount of the deduction that the employer intends to make from his next salary. If the employee does not give written confirmation of his consent both with the basis and with the amount of deduction of this supposedly his debt, the employer will have to implement his claims for the amount he has determined through the court, which, as it turned out, did not reach its logical conclusion in labor relations.
From the established practice for this type of withholding, it follows that if the advance report on a business trip has been approved, it is possible to recover from the employee any amounts associated with it only by a court decision and provided that after the approval of this report, abuses of the right and ( or) falsification of documents by the employee.
However, speaking of other cases contained in sec. 3 hours 2 tbsp. 137, which indicates an unlimited number of reasons with which the legislator associates the issuance of an advance by an employer to an employee, in particular, one who is transferred to another job in another locality, it should be noted that there is no legitimate opportunity to determine the moment of an advance not returned in a timely manner. Consequently, there is no legal possibility to withhold, within a month, from the employee’s salary the amounts not spent by him to pay off his debt to the employer, formed due to this type of advance not voluntarily returned. By the way, Art. 169 of the Code does not oblige the employee to voluntarily return such an advance payment, nor does it oblige him to establish a return period in a contractual manner. In addition, it is not docked with Art. 137, since in it the movement of an employee to work in another locality is not connected with his performance there only of another, and not of any work. In addition, the frequent use of the words “other work” in the Labor Code of the Russian Federation in various contexts requires their separate explanation for specific norms of the Code (the word “other” in its main meaning has the meaning “other than it is, not the same”). In connection with this clarification, moving to work in another locality formally excludes the possibility for an employee to perform work in a new locality that is similar to what he previously performed, which literally limits the cases of issuing this type of advance payment.
It is also subject to a negative assessment that the legislator does not indicate the specific reasons for the employee to move to work in another area, which are associated with advance payments, since these reasons are heterogeneous. Thus, the move may be associated with the transfer of an employee to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation), with the dismissal of the employee on appropriate grounds and the choice of a vacancy in other localities, if this is provided for by the collective agreement, agreements, labor contract ( Articles 74, 76 and many other articles of the Code). In addition, it can be a move in the order of the so-called organized recruitment (Article 324 of the Labor Code of the Russian Federation), etc.
Analysis of the fourth paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Paragraph 4 h. 2 art. 137 allows deductions from the employee’s salary to pay off his debt to the employer and return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, if the ORITS recognizes the employee’s guilt in failure to comply with labor standards (part 3 of article 155) or simple (part 3 of article 157). Analysis of the content of the norms that collectively determine the rules for deductions from wages on the basis of par. 4, allows us to say: almost all the problems characteristic of withholding on the basis of Part 2 of Art. 137 are also present in this case.
In the studied relevant acts of the period specified in Part 3 of Art. 137, no, and the employee can repay these debts at a time not limited by law, unless the employer convinces him to determine such a period in a special written agreement. Thus, once again we can state: the employer does not have a legal opportunity to withhold from the employee’s salary the amount for the repayment of his debt, which was formed due to excessive amounts paid to him as a result of both accounting errors of an accountant or a computer operator, and not detected by the employer in a timely manner the fault of the employee in failure to comply with labor standards and (or) the occurrence of downtime.
Attention is drawn to the legal depravity of withholding for a counting error actually committed by the employer. After all, the reason for this type of deduction is the fault of the employer's representatives, and for some reason the employee must pay for it. This rule ignores such a basic principle of law as justice: an employee could spend a certain amount without knowing that he received it excessively. Consequently, he really cannot return exactly those banknotes that were excessively issued to him, he will return only his other money, which constitutes his legitimate earnings. In such cases, it would be fair to put this type of overpaid amounts on a par with overpaid payments due to incorrect application of labor legislation or other regulatory legal acts containing labor law norms. An example of such an error may be an overcharged amount due to the incorrect application of the Bonus Regulations by the accounting department. However, in this case, according to part 4 of Art. 137 responsibility in the form of compensation for damage to the organization is borne by the guilty employee, attributable to the administration of the employer.
There are also ambiguities in the withholding (return) of amounts overpaid to an employee, if the ORITS recognizes his guilt in failure to comply with labor standards (part 3 of article 155) or downtime (part 3 of article 157). In part 3 of Art. 155, it is determined that in case of non-fulfillment of labor standards, non-fulfillment of labor (official) duties due to the fault of the employee, payment of the normalized part of the salary is made in accordance with the amount of work performed. In turn, in accordance with Part 3 of Art. 157 downtime due to the fault of the employee is not paid. Moreover, about the beginning of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue to fulfill his labor function, the employee is obliged to inform his immediate supervisor, another representative of the employer (part 4 of article 157). If the employee did not report his downtime, then, being, for example, a pieceworker or a lump-sum employee, he will not receive compensation for the lost time, therefore, it is not in his interests to remain silent about the downtime. This means that silence about downtime is beneficial only to an employee who is on a salary or a time rate. However, even in this case, if his work is related to quantitative, and not only qualitative indicators, its volume per day (shift) will not be equal to the volume during a normal working day (shift), even in the absence of a normalized task, which should not be left without evaluation from side of the employer's administration.
Thus, only from the moment the employer's representatives fix both the non-compliance with labor standards and the start of the employee's downtime, these documented facts can be recognized as grounds for not accruing the normalized part of the salary. Then a clarification procedure will be required, due to whose negligence the fault of specific persons in the occurrence of these events was not established from the moment they occurred until the moment the employee was paid in full. Moreover, there is no definition of the concept of "normalized part of the salary" in the Labor Code of the Russian Federation, as well as in other existing labor acts, which immediately excludes the possibility of unambiguously understanding and applying this rule. For example, in the absence of an indication in Art. 155 about the need in such cases for an employee to have a normalized task, it is impossible to talk about non-fulfillment of labor standards, in particular, norms of output or time, and even more so about non-fulfillment of the norm of labor duties by an employee who is on a salary (Articles 160 and 163). Therefore, Part 3 of Art. 155, containing unclear provisions, is a potential source of disagreement between the employee and the employer.
So, when withholding debt on the basis of par. 4 hours 2 tbsp. 137 there are many questions of a practical nature, related both to the determination of the fault of the employee in the payment of excessively accrued amounts to him, and with the actions of the employer in order to return them. The legislator makes the return of overpaid amounts dependent on the decision of the ORITS, i.e. from the recognition of the employee's guilt in the occurrence of these events or by the commission on labor disputes(hereinafter - KTS), or by the court. But the CCC is not authorized by the legislator to examine the employer's appeals (Article 385 of the Labor Code of the Russian Federation), and the court considers the employer's statements arising from labor relations only on the issue of compensation by the employee for damage caused to property that is under the responsibility of the employer (Article 238, 248, 391 and 392 of the Labor Code of the Russian Federation).
Therefore, in order to restore justice, the employee himself (!) must apply to the ORITS with a statement on the recognition of his guilt or in committing illegal acts. Therefore, either the debts of the employee must be recognized as one of the types of property of the employer in Ch. 39 of the Labor Code of the Russian Federation (as it was earlier in the Labor Code), or this type of deduction, which does not have a logically completed legal mechanism for collecting funds overpaid to an employee, is not suitable for real application in practice. Then the question arises, which remains unanswered in the Labor Code of the Russian Federation: how can an employer legally protect its interests and rights in cases related to Art. 137? To get out of this situation, the employer, when applying to the court, will have to rely not on the norms of the Labor Code of the Russian Federation, but on general legal approaches to cases of protecting violated rights. As is known, the Supreme and Constitutional Courts of the Russian Federation, by interpreting Art. Art. 8, 34 and 46 of the Constitution of the Russian Federation came to the conclusion: in accordance with the principle of equal legal protection, not only citizens, but also organizations have the right to protect their interests in court without any restrictions.
Analysis of the fifth paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the norms that collectively determine the rules for withholding from wages on the basis of par. 5 hours 2 tbsp. 137, allows us to say: this case is an exception to the rule contained in part 3 of the article in question. But first, let us recall the mechanism for regulating the procedure for retaining an employee's debt, set out in par. 5 hours 2. So, deductions from the employee's salary to pay off his debt to the employer can be made upon dismissal of the employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77, paragraphs 1, 2 and 4, part 1 of Art. 81, as well as paragraphs 1, 2, 5, 6 and 7, part 1 of Art. 83 of the Labor Code of the Russian Federation.
From the foregoing, it follows that upon dismissal of an employee for all other (not excluded from general rule) on the grounds provided for in the Labor Code of the Russian Federation or other federal laws, the employer has the right to withhold the amount of the debt from the funds due to the employee "on account", but proportional to the days of all vacations that he received in advance that he did not work out. In para. 5 hours 2 tbsp. 137, the legislator did not specify the types of holidays used by the employee in advance, but generalized them with the concept of "annual paid leave". According to Art. 120 of the Code, the duration of the annual paid leave is determined by summing up the main and all additional paid holidays due to the employee, calculated in calendar days, and the maximum limit is not limited.
Thus, the leave granted to the employee before dismissal may look, for example, as a set of holidays for different working years, which the employee managed to use only partially in connection with his recall from vacation, and deductions, as you know, contrary to common sense, are not allowed (Art. 125 of the Labor Code of the Russian Federation). This may also be an extended vacation due to joining the next, but advance vacation, of transferred vacations that the employee has not used over the past years (Article 124). Any combinations significantly complicate the possibility of returning to the employer paid vacation funds that have not been worked out by the employee, taking into account the instructions of Art. 137; only deduction from salary is permissible, the composition of which is defined in Part 1 of Art. 129. But, as you know, the composition of the payment "on account" can be much wider than the composition of the salary, which requires additional clarification by the legislator of the possibilities of applying to other payments to withhold the employee's debt upon dismissal.
Nevertheless, the employer, making the final settlement upon dismissal of the employee, has the right to withhold amounts in proportion to any unworked, but fully paid vacation. For this purpose, the calculation of the time worked specific employee in the working year with this employer, is carried out on the basis of the provisions of Art. 121, which defines the rules for calculating the length of service, giving the right to annual paid basic and additional holidays.
In contrast to the rules that apply to par. 2 - 4 h. 2 tbsp. 137, withholding in the case referred to in par. 5 part 2 of this article (refund of amounts for unworked days of vacation), is not limited either by the terms or by compliance with the procedure for challenging the basis and amount of this type of deduction. In addition, this type of deduction can be made at a time or with installment payments during the period of dismissal of the employee, regardless of what part of the salary remains after all other penalties from him. At the same time, the amount of the recovery and deduction itself is limited only by an amount proportional to the payment of advance vacation days not worked out due to dismissal. However, as a rule, this amount is not enough to pay off the employee's debt in full. Moreover, in the amount "for settlement" received upon dismissal immediately after the used, especially the total vacation, the salary component can be close to zero, and it is impossible to formally make deductions from other payments due to the employee at that moment.
So, Labor Code The Russian Federation does not provide for the provision of annual paid leave in proportion to the time worked by the employee. And even, moreover, it allows the provision of such leave in advance, including for the first year of work before and after six months (parts 2 and 3 of article 122). The duration of such leave is established by law and other acts both for the main and for all additional holidays due to the employee with payment as specified in Art. 139 size. Therefore, in any case, based on the rules of Art. Art. 114 - 116 and 120, the employee is granted annual paid leave of a fixed duration and with the preservation of average earnings, which, on the basis of Part 9 of Art. 136 is also paid in advance, namely no later than three days before its start.
Based on the foregoing, this norm cannot be considered justified: after all, in this case, the employee has not yet "earned" his vacation. Then why should it be paid in full? This outdated norm of legislation gives rise to the problems discussed in the analyzed paragraph. 5 hours 2 tbsp. 137. Based on the analysis of the relevant regulatory legal acts on the competences of the CCC, the court, the prosecutor's office and the labor inspectorate, the following conclusion can be drawn. An employee can apply for the restoration of his right to timely and full payment of a fair salary to any specified body, but the employer does not have such an opportunity to withhold debts from an employee based on the norms of the Labor Code of the Russian Federation.
Summing up, we note the following. The Labor Code of the Russian Federation and other regulatory legal acts accompanying it in regulating the procedure for withholding amounts of debt from the employee’s salary do not contain exhaustive answers to the above complex practical matters. At the same time, based on the analysis, it can be seen that an unambiguous rule should be introduced into the Code, according to which the employer has the right to bring a lawsuit against the employee in court to recover from him the amounts of debt arising from the grounds of Art. 137, if the possibility of its repayment from the salary in an indisputable manner, provided for by the current labor legislation, is excluded. Therefore, in order to correct the situation that has arisen, it must be recognized that the debts not repaid by the employee upon dismissal are an independent type of damage caused to the employer, since the non-repayment of debts actually reduces the size of his property. To do this, at least make appropriate additions and changes to Part 2 of Art. 238, part 1 of Art. 243 of the Labor Code of the Russian Federation.
V.V. Arkhipov
Docent
departments of labor law
and social security rights
Faculty of Law
Academy of Labor and Social Relations
Signed for print
18.05.2009

1. Deductions from an employee's wages may be made in cases where established by law, i.e. regardless of the will of the employer, and by his decision. Article 137 of the Labor Code of the Russian Federation defines the grounds for deductions made by the decision of the employer to pay off the employee's debt, and contains an exhaustive list of such grounds.

It must be emphasized that the employer has the right, but is not obliged to make deductions. This directly follows from Part 2 of Article 137 of the Labor Code of the Russian Federation.

2. The grounds and rules for deductions from wages of an employee are established by the Labor Code in accordance with ILO Convention No. 95. Article 8 of the Convention provides that deductions from wages are allowed to be made under the conditions and within the limits prescribed by national legislation or determined in collective agreements or in decisions arbitration courts. Workers should be advised of the conditions and limits of such deductions.

3. It is necessary to distinguish from deductions the recovery of the amount of damage caused by the employee (see comments to Article 248).

4. Along with deductions made on the orders of the employer and aimed at paying off the debt of the employee, there are deductions made on the basis of federal laws. They are aimed at fulfilling the duties of an employee to the state or other persons. current legislation the possibility of withholding personal income taxes, administrative fines, fines as a criminal punishment from wages has been established, certain amounts(part of wages) when serving a sentence in the form of corrective labor, sums of money by a court decision (a writ of execution).

5. Article 137 of the Labor Code of the Russian Federation establishes the procedure and conditions for deductions. Firstly, the employer must comply with the deadline - a month from the date of expiration of the deadline set for the return of the advance, repayment of debt, etc. Secondly, the absence of disagreements with the employee about the grounds and amounts of deductions.

6. A particular difficulty in practice is the question of determining the presence (absence) of a counting error.

A counting error should be understood as an error in arithmetic operations when calculating the amounts payable, as well as other technical errors (typos, misprints, etc.). Incorrect application of appropriate legal regulations is not a counting error.

7. By decision of the employer, amounts overpaid to the employee as guarantee payments in case of non-fulfillment of labor standards or downtime may be withheld. This is possible in the event that the body for the consideration of an individual labor dispute establishes the guilt of the employee in failure to comply with labor standards or in idle time (see also comments to Articles 155, 157).

8. Amounts paid to the employee as payment for vacation may be withheld in case of his dismissal before the end of the working year for which the vacation was granted. The exception is the grounds for dismissal at the initiative of the employer, not related to the employee’s guilty behavior (clauses 1, 2, 4, part 1, article 81), and dismissal due to the employee’s refusal to transfer to another job, which he needs in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (clause 8, part 1, article 77).

Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.

Deductions from the employee's salary to pay off his debt to the employer can be made:

to reimburse the unworked advance payment issued to the employee on account of wages;

to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;

to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this of the Code);

upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.

Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:

counting error;

if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);

if wages were overpaid to the employee in connection with his illegal actions established by the court.

Comments to Art. 137 of the Labor Code of the Russian Federation


1. In accordance with the UK (Article 81), in the absence of an agreement on the payment of alimony, alimony for minor children is collected by the court from their parents on a monthly basis in the amount of: for 1 child - 1/4, for 2 children - 1/3, for 3 or more children - 1/2 of the earnings and (or) other income of the parents. The size of these shares may be reduced or increased by the court, taking into account material or marital status parties and other noteworthy circumstances.

Types of earnings and (or) other income that parents receive in rubles and (or) in foreign currency and from which alimony collected for minor children is deducted in accordance with Art. 81 SK are determined by the Government of the Russian Federation.

Article 83 of the UK establishes the collection of alimony for minor children in a fixed amount of money.

In the absence of an agreement between the parents on the payment of maintenance for minor children and in cases where the parent obliged to pay maintenance has irregular, changing earnings and (or) other income, or if this parent receives earnings and (or) other income in whole or in part in kind or in foreign currency, or if he has no earnings and (or) other income, as well as in other cases, if the recovery of alimony in proportion to the earnings and (or) other income of the parent is impossible, difficult or significantly violates the interests of one of the parties, the court has the right to determine the amount of alimony collected on a monthly basis, in a fixed amount of money or simultaneously in shares (in accordance with Article 81 of the UK) and in a fixed amount of money.

The amount of a fixed sum of money is established by the court on the basis of the maximum possible preservation of the child's previous level of support, taking into account the financial and marital status of the parties and other noteworthy circumstances.

If children remain with each of the parents, the amount of alimony from one of the parents in favor of the other, less well-off, is determined in a fixed sum of money collected monthly and appointed by the court in accordance with paragraph 2 of Art. 83 SC.

2. Decree of the Government of the Russian Federation of July 18, 1996 N 841 approved. The list of types of wages and other income from which alimony for minor children is deducted (see paragraphs 1 - 4 of the List - not given).

3. Indication Federal Service Employment of Russia dated March 30, 1993 N P-7-10-307 "On the procedure for withholding alimony on executive documents transferred for collection to bodies public service Employment" establishes the procedure for withholding alimony on executive documents submitted for collection to the bodies of the state employment service.

When the child reaches the age of majority and in the absence of debt on alimony, the writ of execution is returned to the court that issued the decision. If the unemployed person has a debt, the writ of execution remains at the employment center until it is paid off.

4. The procedure for foreclosure on wages and other types of income of the debtor is determined by the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings".

5. Art. 8 of the ILO Convention N 85 states that deductions from wages are allowed only under the conditions and within the limits established by the legislation of the country or specified in collective agreement or decision of the arbitration body. Deductions from wages in favor of the employer, his representative or intermediary, providing direct or indirect remuneration in order to obtain or keep a job, are prohibited (Article 9).

 

It might be useful to read: