Deductions from employees' wages. Deduction from wages - the procedure for deductions according to the Labor Code of the Russian Federation Labor Code of the Russian Federation Art 137

ST 137 of the Labor Code of the Russian Federation.

Withholding from wages the employee are made only in the cases provided for
this Code and other federal laws.

Deductions from the employee's wages to pay off his debts to the employer
can be produced:

  • to reimburse the unearned advance paid to the employee on account of wages;
  • to pay off an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
  • for the return of amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, if the body for consideration of individual labor disputes recognizes the employee's guilt 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) Code);
  • upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for by 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 by the second, third and fourth paragraphs of the second part of this
article, the employer has the right to make a decision to deduct from the employee's wages
later than one month from the date of the end of the period established for the return of the advance payment, repayment
arrears or incorrectly calculated payments, and provided that the employee does not dispute
grounds and amounts of retention.

Wages overpaid to an employee (including in case of incorrect
the 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 recognized the employee's guilt 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 the salary was paid to the employee in excess in connection with his illegal actions established by the court.

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

1. Deductions from the employee's wages can be made only in cases provided for by the Labor Code of the Russian Federation or other federal laws. The prohibition on deductions, in addition to the cases established by laws, ensures the protection of the wages of employees.

2. The content of the commented article complies with the provisions of the ILO Convention No. 95 "On the Protection of Wages" (adopted in Geneva on July 1, 1979). Article 8 of the said Convention provides that deductions from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in collective agreements or in decisions of arbitration courts. Workers must 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 employee's position in comparison with that provided for by law.

Any deductions at the discretion of the employer related to the imposition of a part of production costs on the employee, satisfaction of claims from third parties to the employer or the employee are not allowed without a court decision or the consent of the employee himself

3. Currently, in other codes and federal laws established the possibility of deduction from wages when taxes are collected from the income of individuals, when collecting fines as a criminal punishment, when serving a sentence in the form of correctional labor, when executing court decisions.

4. Deductions for the purpose of levying tax on personal income are made in accordance with the Tax Code. stipulates that the organizations from which the taxpayer receives income are obliged 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 taxpayer's income when actually paid. In this case, the withheld tax amount cannot exceed 50% of the payment amount.

5. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 PEC sentenced to a fine is obliged to pay it within 30 days from the date of entry into force of the verdict or in another period, if the court decided on the installment plan. A convicted person who has not paid the fine within the prescribed period is recognized as maliciously evading the payment of the fine, and if the fine is established as an additional type of punishment, the bailiff-executor enforces the collection of the fine (Article 32 of the PEC). In this case, one of the measures of compulsory execution is the foreclosure on wages in accordance with Ch. 12 of the Federal Law of October 2, 2007 N 229-FZ "On Enforcement Proceedings".

6. Detentions by virtue of a court decision are also made when an employee is serving correctional labor as a punishment for a committed criminal offense. The basis for making such deductions is a court sentence. In accordance with Art. 40 PECs, deductions are made from the convict's salary in the amount established by the court's verdict. The employer is responsible for the correct and timely deduction from the convict's salary and the transfer of the deduction amounts in accordance with the established procedure. The procedure for making deductions is established by Art. 44 PEC.

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

8. The Labor Code of the Russian Federation 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 of the Russian Federation, as well as in order to compensate the employee for property damage caused to the employer.

For the procedure for compensation by the employee for property damage caused to the employer, see.

9. An employee's debt to the employer may arise as a result of an advance payment to the employee against wages or in connection with a business trip or transfer to work in another locality. In the event that the employee did not work out such an advance or did not use the amount issued in advance for the purpose of a business trip or relocation to another locality and does not return it voluntarily, its amount may be withheld from the employee's salary.

For the amounts given to an employee on business trips, see her.

10. The order of the employer to withhold the advance payment from the salary can be made in the presence of two conditions: 1) the employee does not dispute the grounds and amount of the deductions; 2) the order is made no later than one month from the end of the period established for the return of the advance.

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

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

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

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

11. Debts to the employer may also arise if the employee is paid excessive amounts due to an accounting error. The counting error should be understood as an error in arithmetic operations when calculating the amounts due to be paid. The employer's order to deduct amounts overpaid due to an accounting error from wages is possible in the absence of a dispute with the employee about the grounds and amount of these deductions, provided that the order is made within a month from the date of payment of the incorrectly calculated amounts. If the employer misses the month, the amounts overpaid to the employee may be collected in judicial procedure.

Amounts overpaid due to improper application of wage laws, collective bargaining agreements, agreements or labor contracts, as well as errors of an organizational and technical nature (for example, when re-transferring funds to the employee's bank account ). See also Definition of the RF Armed Forces of January 20, 2012 N 59-B11-17.

12. Amounts overpaid to the employee are subject to withholding if the body for consideration of the individual labor dispute recognizes the employee's guilt in failure to meet production standards or in idle time.

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

For remuneration for idle time, see Art. 157 of the Labor Code of the Russian Federation and a commentary to it.

13. Amounts paid to the employee as payment for vacation are subject to withholding, in the event of his dismissal before the end of the working year for which the vacation was granted.

For the procedure for granting vacations, see Art. 122 of the Labor Code of the Russian Federation and a commentary to it.

In case of dismissal of an employee before the expiration of the working year for which the leave was granted, deductions are made upon final settlement with the employee. This rule does not apply when dismissing an employee on the grounds provided for in paragraph 8 of Art. 77, clauses 1, 2, 4 of Art. 81, clauses 1, 2, 5 - 7 of Art. 83 of the Labor Code of the Russian Federation.

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


Fulfillment of labor duties in our time is not free, since each employee is entitled to a salary. The legislation provides for cases when the amount of payment will be reduced as a result of deduction from salary, provided for in Article 137 of the Labor Code of the Russian Federation and other Federal Laws. In order to know in more detail the rights and obligations, as well as the procedure for the implementation of collecting from wages, you should consider this issue in more detail.

deduction from wages

In this law, and specifically in article 137 of the Labor Code of the Russian Federation, cases are prescribed that give the employer the right to withhold a certain amount from the salary. They are as follows:

  • for an unearned advance paid in advance;
  • repayment of an unspent advance payment that was not returned on time;
  • for erroneous accrual of an amount greater than the prescribed amount;
  • for paid annual leave if the dismissal occurred earlier than the end of the working year.

This recovery from wages is possible only within a month after the event. Also, the employee should not have any objections, including challenging him in court.

And you can find out how many percent of the salary is an advance payment in this article.

Income tax after deduction from wages

Compulsory penalties are carried out from the salary, which include personal income tax and penalties based on the results of the issuance of a writ of execution. Personal income tax is withheld from salaries by employers, based on the amount calculated by tax agents on a monthly basis. Income tax is 13 percent of wages after withholding. This tax rate of 13 percent is always taken into account for standard deductions provided for in Article 218 of the Labor Code of the Russian Federation. For some other types of income, there may be an individually calculated rate.

Deduction of alimony from wages under a writ of execution

The presence of a writ of execution is mandatory when withholding alimony. It indicates the size of the payment, which is set in a fixed amount, or they can deduct a certain percentage from the salary. The collection of the amount of alimony takes place on a monthly basis. After the salary is calculated, there are only 3 days for this. It is worth noting that alimony is transferred after personal income tax has been deducted from the total amount. Also, when calculating the amount of alimony, you cannot take into account material assistance and travel allowances.

The procedure for the implementation of recovery from salary for the payment of alimony is quite simple. The money goes to the account, which is usually written in the writ of execution. This account belongs to the FSSP, and from it the funds are already transferred to the recipient's account. Moreover, at his request, they can be submitted not every month, but quarterly. If the employee's income level rises, then the employer must provide this information, otherwise sanctions will be applied to him.


Wage Deduction Application - Sample

The employee can independently take the initiative regarding the collection of funds from the salary. In this case, he needs to write an application addressed to the employer and indicate the following data in it:

  • at the top prescribes a "cap", where the full name and position of the head and employee are indicated;
  • document's name;
  • the request and the reasons for the penalty;
  • the amount of penalties;
  • details for sending funds;
  • start date and procedure for collection;
  • date and signature.

Order to withhold funds from wages

In the Labor Code of the Russian Federation, there is no official form for writing an order for automatic payment of funds from a salary. The main thing is to indicate the following information:

  • the name of the company;
  • Title of the document;
  • date and number of the order;
  • collection data;
  • signature of the manager, accountant and employee.

Although the order has a free form of writing, its content must necessarily contain information about the person from whom the collection is made, in what amount, and also what grounds there are.

The maximum amount of deductions from wages under Article 138

Determines the limit on the amount of deductions from wages. According to this article, the total amount of all deductions from wages cannot exceed 20%, unless otherwise specified in the Federal Law. In some situations, the maximum size can increase up to 50%. This can happen in the first place when collecting a writ of execution. It is also possible if there are several executive documents. There are times when the maximum collection amount can be increased to 70%. They are as follows:

  • corrective work by court order;
  • alimony;
  • when causing harm to health;
  • due to the inflicted crime;
  • payments due to the loss of a breadwinner.

It is important to note that the increased amount of payments can be withheld only for alimony for minor children, in any other cases it is not more than 50%.

Thus, deductions from wages are in accordance with the norms specified in article 137 of the Labor Code of the Russian Federation. The application procedure must be strictly followed in order to avoid debt and liability for its occurrence.

Practice shows that the emergence of a labor dispute between the employer and the part of the funds withheld by the second from the earnings of the first is a far from uncommon phenomenon. Labor Code article 137 reveals all the nuances of such a delicate problem.

Labor disputes arise quite often ...

Withholding some part of the funds earned by an employee is possible only in situations that are fixed in the Labor Code or are affected by federal laws of a different kind.

In order to withhold part of the earnings intended for the employee, the employer must make an appropriate decision regarding a penalty of this kind.

It is possible to withhold a certain share of the employee's salary in a timely manner, which arose before the employer, in a number of cases:

  • if you need to reimburse the unearned advance that was given to the employee against the salary;
  • in order to pay off an unspent or in due time not returned advance, issued on the occasion of a business trip or, if it took place in another region, etc.
  • when making a return of amounts that were paid to an employee as a result of counting errors, as well as those amounts that were unnecessarily handed over to the employee, in situations of recognition by a special body that is created to resolve specific labor disputes, the employee's fault for idle time or for not fulfilling labor standards;
  • if the employee quits before the end of the year for which he has already managed to receive the due to him. Nothing will be held back only when the employee was dismissed in accordance with the grounds provided for by a number of articles of this Code.

The employer retains the right to make a decision regarding the deduction of a certain share from the employee's salary no later than one month after the end of the period that was set for the return of the advance payment, repayment of debts or erroneously calculated ones, but only in cases where the employee does not dispute himself fact, or the amount of retention.

The amount of salary payments overly given to an employee cannot be collected from him in specific cases:

  1. if there was a counting error;
  2. if the instance dealing with such facts recognizes the employee's share of the fault in non-performance or violation of labor standards, simple;
  3. if it was unnecessarily given to the employee in connection with his actions that are illegal and established in court.

Commentary on Article 137 of the Labor Code of the Russian Federation

Labor Code will give answers to all questions

In line with the fact that wages are, in fact, the main source of income in many Russian families The Labor Code establishes that financial deductions from wages are allowed only in situations provided for by the provisions of this article.

Any other cases of deductions are determined only by the provisions of federal law. These include:

  • for the income of individuals;
  • (we are talking about tax, administrative, criminal);
  • etc.

In all these situations, retention is carried out solely on the basis of the law or executive documents issued by the employer. As practice shows, it is especially difficult to solve a problem when it is necessary to establish the presence or absence of a counting error.

We are talking about the inaccuracy of arithmetic operations associated with the calculation of the amounts to be paid, about possible misprints, misprints. A counting error cannot be recognized: misapplication the respective legal regulations, erroneous transfer of the amount of money to a bank account.

In accordance with the decision made by the employer, the overpaid amount of money can be deducted from the employee's salary as a guarantee payment in case of non-compliance with labor standards or a simple one. However, this can only be done if the employee's fault is established by a special body.

They can withhold wages to pay alimony, pay off tax arrears

It is possible to withhold the amounts given to the employee to pay for the vacation, but only if the dismissal took place before the end of the year for which the vacation was granted. There are also exceptions.

These include: grounds for dismissal at the initiative of the employer, not related to the employee's guilty behavior, as well as dismissal due to the employee's refusal to transfer to another job.

The employer's right to return the money for the vacation days not worked out by the employee cannot be determined depending on the availability or absence of a particular employee at the time of dismissal accrued, but for now, from which a deduction of this kind can be carried out.

Otherwise, there would be a violation of the principle of equality of all workers. They would be put in different situations, depending on whether there was an accrual of any amounts. You cannot withhold part of the money from the employee's salary in any other situation, except for those described above.

It is impossible to recover from an employee's salary if its excessive payment is associated with the incorrect application of laws or other normative acts (meaning, incorrect determination of the amount of salary, tariff category etc.).

In order for the employee to have an idea of ​​all the details of the withholding and its legality, he must be familiar with the content of Article 137 of the Labor Code of the Russian Federation. In this case, it will be possible to decide as painlessly as possible regarding the legality of such a retention.

Time to Talk: About Labor Code Violations. Watch the informative video:

1. Deductions from the 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 determines 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 should be emphasized that the employer has the right, but not the obligation 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 under conditions and within the limits prescribed by national legislation or determined in collective agreements or 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 Art. 248).

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

5. Article 137 of the Labor Code of the Russian Federation establishes the procedure and conditions for withholding. First, the employer must comply with the established deadline - a month from the date of the end of the deadline established for the return of the advance payment, repayment of debt, etc. Secondly, there is no disagreement with the employee about the grounds and amount 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 due to be paid, as well as other technical errors (typos, misprints, etc.). Incorrect application of the relevant legal provisions is not a counting error.

7. By the decision of the employer, the amounts overpaid to the employee as a guarantee payment in case of non-fulfillment of labor standards or idle time may be withheld. This is possible in the case when the individual labor dispute resolution body establishes the employee's guilt for failure to comply with labor standards or for idle time (see also the commentary to Articles 155, 157).

8. Amounts paid to the employee as vacation pay may be withheld in the event 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 of Article 81), and dismissal due to the employee's refusal to transfer to another job, which is necessary for him 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 employer's lack of appropriate work (clause 8, part 1 of article 77).

"Legislation and Economics", 2009, N 5
ARTICLE 137 LABOR CODE OF THE RF: 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 statement 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 promote mutual understanding and withholding by the employer from the salary (hereinafter - the salary) of the employee 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 became the reason for the study of the norms of labor legislation governing this type of labor relations.
Types and methods of collection and retention
To carry out the retention, i.e. non-accrual of any part of the earnings payable to the employee and its transfer to the proper person is necessary for the employer or other authorized body to make a decision to recover the amounts specified by law from the employee. In this regard, penalties are subdivided into those made according to the law, indisputable, including according to the executive inscription, court decisions, administrative according to the instructions of state bodies and officials who have been given the discretionary right to impose fines, write off or otherwise collect money from the citizens' funds. funds of the amount, as well as the resulting debt in the amount established by law.
And if, in practice, most types of collection do not cause the employer's representatives to explain the rules for their implementation to them, then their type as indisputable (including on the executive note) requires a detailed clarification of its legal essence. So, under undisputed collection in jurisprudence is understood the compulsory collection of monetary amounts that formed the debt of the obliged person (debtor) to the recoverer, by deducting them from the funds belonging to the debtor (including natural person), in order to compensate for this debt without contacting the authority that resolves property disputes. Recovery in an indisputable manner is allowed only in cases directly provided for by law, and only officials and the bodies named therein. Recovery on the executive note is one of the special cases of uncontested collection from the debtor of a certain amount of money due to the recoverer; it is carried out on the basis of a notary order made on a genuine debt document. Thus, collection on an indisputable basis is one of the types of collection made by compulsory method, and only in cases where the debtor does not pay off the debt arising from him on a voluntary basis. In turn, withholding is a way of implementing the collection and securing the fulfillment of the debtor's obligations.
All possible deductions from the employee's salary can be divided into the following three groups of his obligations, established by federal law, before:
- 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, according to executive documents on the recovery of alimony, compensation for harm, as well as for the repayment of loans, transfer of contributions, etc. - Art. 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 deductions. Its characteristic feature is the following: a representative of the employer who has the right, on the basis of local statutory acts, to make a decision on withholding those specified in Art. 137 of the Labor Code of the Russian Federation of types of his debts to the employer, issues an order (order) to collect a certain amount debt from the employee's salary and he himself implements this decision by not calculating these amounts to be paid.
General and specific positions of the legislator on withholding amounts
from the employee's salary
So, the rules on the possibility of deducting from the employee's salary any funds due to him in a voluntary, administrative, indisputable or judicial procedure 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 the 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 does not agree with the penalties on the basis of local acts, the amounts withheld by the employer are subject to return either voluntarily or compulsorily. It is possible to force the employer to return (additionally charge) the amounts withheld (collected) by him unlawfully is possible by the decision of the bodies considering individual labor disputes (hereinafter - ORITS; Article 382 of the Labor Code of the Russian Federation), as well as according to the relevant instructions of the prosecutor (part 4 of Article 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).
Part 2 of Art. 137, the following are attributed to the cases of the employee's debt to the employer who allows it to be deducted from his salary:
- reimbursement of the unearned advance paid to the employee on account of the salary;
- repayment of an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
- return of amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, in the event that the ORITS recognizes the employee's guilt in non-compliance 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 vacation days, which is made upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation. Deductions for these days are not made if the employee is dismissed on the grounds provided for in clause 8 of part 1 of Art. 77 or clauses 1, 2 or 4 h. 1 of Art. 81, clauses 1, 2, 5, 6 and 7 hours 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 from the general rules on mandatory penalties associated with other groups of deductions) a special procedure for collecting from the employee his debts to the employer, 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 can withhold the amount specified in par. 4 h. 2 tbsp. 137, as overpaid to the employee as a result of an accounting error.
The employer's discretion also applies to other cases specified in par. 4 h. 2 tbsp. 137, but with significant legal caveats. Withholding on them is possible if the employee's fault in failure to comply with labor standards or simple is recognized not by the prosecutor or labor inspector, but by the ORITS. This means that the already paid wages of the employee, in case of his idle time and his 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 withhold overpaid amounts from the employee's salary in the case specified in par. 5 h. 2 tbsp. 137.
So, in part 2 of Art. 137 provides a list of cases in the occurrence of which the employer has the right (but is not obliged) to carry out 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, withholding is made precisely from the employee's salary in order to cover his debts to this organization, which arose as a result of his both legitimate and illegal actions.
Let's 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 an obligation on the employer to notify him of their collection in advance of the deduction of any amounts from the employee's salary. The performance of this noble deed is, as it were, implied, but the theoretical presumption of the employer's good faith is rarely confirmed by practice. Consequently, the employee will become aware of the deduction 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 (taking into account the rules of Art. 138) for the employer to fully recover the overpaid amounts at one time, when the employee learns about his debt to the employer, but already from the document he received, for example, a pay slip issued on the day salary payments (part 1 of article 136).
In the above situations, the employee must either, having received the amount accrued to him by the employer of a smaller amount than he expected, immediately apply to him in writing with a requirement to recalculate it, or refuse to receive it altogether, thereby expressing his disagreement with the deduction 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 bring the employer through the ORITS to financial liability for the incorrectly calculated and not issued wages in a timely manner. But this can happen only if the employee is in favor of the dispute over the right to the amounts not additionally accrued to him by the employer (Articles 236 and 237 of the Labor Code of the Russian Federation).
Part 3 of Art. 137, the legislator has established: in the cases provided for in par. 2, 3 and 4, part 2 of this article, the employer has the right to make a decision on deduction from the employee's salary no later than one month after the end of the period established for the return of the advance payment, repayment of arrears or incorrectly calculated payments, and provided that the employee does not dispute the grounds and retention sizes. Consequently, these rules do not apply to par. 5 hours 2 of this article, talking about the return of amounts for unworked days of vacation. It is for this case that the employer is not required to comply with the deadlines, or to clarify from the employee his intentions to challenge the grounds and amount of deduction of amounts for advanced leave, 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, for some reason, ignores the possibility of their real occurrence.
With regard to other grounds for withholding the employee's debt listed in Part 2 of Art. 137, the following should be noted. Neither the Labor Code of the Russian Federation, nor in other regulations related to these types of deductions (except for the report on a business trip), does not define a period for either a literally voluntary or mandatory, but voluntarily, return by the employee of the amount of debt that has formed for him. Thus, the legislator deprived the employer of the opportunity to act in the manner prescribed by Part 3 of Art. 137, for he does not have a starting point from which to calculate the monthly period allowed for debt collection in an indisputable manner or in any other compulsory way. Moreover, applied in part 3 of Art. 137 the meaning of the concept of "indisputable penalty" is clearly ambiguous. In the absence in part 3 of this article of the prescribed, and therefore only implied, obligation of the employer to find out from the employee whether he will dispute with him or in the ORITS the basis and amount of the intended retention, it is completely inappropriate to talk about the indisputable order of these penalties, and this is in a situation where the employee practically cannot know about them in advance.
Suppose an employee is notified of it in advance of the deduction and agrees with the basis and amount of his debt, but, as it turned out, he 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 period for voluntary or mandatory self-repayment of the debt has not been established, the employee can repay his debt indefinitely. Consequently, the rule of Part 3 of Art. 137 is valid if the period for voluntary or mandatory self-return is set, i.e. this rule only applies to the travel advance. This means that if the employer's order to withhold the debt is not made within a month from the date of the expiration of the period established for the return of the advance (for example, on a missed business trip), the employer loses the right to collect the corresponding amounts in an indisputable manner based on his decision. If, in violation of the procedure (exceeding the time limit and (or) the employee's disagreement with the withholding), the employer withholds the amount of the debt, then this collection will be unlawful, which will oblige the employer to return the withheld amount voluntarily, and in case of refusal, on a compulsory basis.
Based on the foregoing, the collection of sums of money, when an employee disputes the basis and amount of withholding for the repayment of almost any type of advance, as well as if the employer misses a month, compensation for these amounts can only be made by a court decision, which, as will be shown below, is also problematic (Art Articles 386 and 387 and Part 2 of Article 392 of the Labor Code of the Russian Federation). Nevertheless, the employer should not forget that the List of documents is still in force, according to which debt collection is carried out in an indisputable manner on the basis of the executive inscriptions of the bodies performing notarial acts, approved by the Resolution of the Council of Ministers of the RSFSR of March 11, 1976 N 171 (as amended by Art. of December 30, 2000), where the following types of employee indebtedness arising from labor relations are indicated:
- unearned advance payment issued against salary, a lump sum, travel expenses and daily subsistence allowance issued to him when concluding an employment contract in the manner of an organized recruitment for work in industry, construction or transport in connection with failure to arrive at the place of work;
- the sum of money for the bedding given to him and not returned to him upon dismissal from work;
- the amount of money for the uniform left for 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 dismissal of these employees and issuance of obligations to repay the specified debt.
The employer needs to know that when withholding the amount of debt owed to him from the debtor on the basis of the notary's executive note, the rules on the circulation period, the types of documents provided to the notary and other organizational requirements should be observed, and also take into account the procedure for enforced collection specified in section. VII of the Civil Procedure Code of the Russian Federation.
Part 4 of Art. 137, the legislator has determined that a salary 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 collected from him, except for the following cases:
- counting error (paragraph 4, part 2, article 137);
- if the ORITS is found guilty of the employee's failure to comply with labor standards (part 3 of article 155) or simple (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 collect overpaid wages, there are no most cases from part 2 of the same article, except for the cases contained in its para. 4. Part 4 of Art. 137 there are no such types of debt repayment as:
- reimbursement of the unearned advance paid to the employee on account of the salary;
- repayment of an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;
- refund of amounts for unworked vacation days, made upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation.
Consequently, already in Part 4 of Art. 137, the legislator either changed his mind about making deductions from these three types of unnecessarily made payments, or committed 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 "collection" in the Labor Code of the Russian Federation, they are used either in their general legal meaning or in the general literary meaning that is given to them in the explanatory dictionaries of the Russian language. With any of the above approaches, the words "withhold" and "collect" in the context of Art. 137 of the Labor Code of the Russian Federation have a relationship between themselves as a cause (to collect) and a consequence (to withhold). Thus, based on the content of Part 4 of Art. 137, the cases listed in para. 2, 3 and 5 h. 2 tbsp. 137, are not formally exclusive and cannot be deducted from the amounts overpaid to the employee. Apparently, in part 4 of Art. 137, the legislator has in mind penalties, decisions on which were made not by the employer, but by other competent authorities, as indicated by the duplication in this part of the article of the cases introduced in para. 4 h. 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 in a different way Part 4 of Art. 137, then the penalties listed in para. 2, 3 and 5, part 2, are attributed to cases where withholding is possible if the salary was overpaid to the employee in connection with his illegal actions established by the court. Unwittingly, attention is drawn to this exceptional case itself, which supplements 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 inaction.
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 para. 2, 3 and 5 h. 2 tbsp. 137, allows us to draw at least two conclusions.
Firstly, these cases are literally not connected with the employee's illegal actions, as a result of which the salary was paid to him excessively, 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 on one condition: unless the employee misled the employer about the rationality of their payment, based on any of their own selfish goals (for example, in connection with the planned operational dismissal after receiving them). Then a rhetorical question arises, to which there is a priori a negative answer: is it possible to refer to the illegal actions of the employee his refusal to voluntarily return the overpaid amounts, if for most types of deductions the legislator has not even established the period of mandatory reimbursement of these amounts by the employee?
Secondly, these cases are associated not only with withholding overpaid amounts from salaries. They also apply to other payments, if debts need to be collected during the final settlement with the employee. For example, the case referred to in para. 5 h. 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 quitting 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 legislative activity of the legislator, we will consider each type of retention described in part 2 of Art. 137, separately, we will try to identify 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, writing it off as "counting errors of the legislator", and consider only the intra-system legal connection of Art. 137, limiting it to three parts. At the same time, we will take into account that the legislator with the possibility of retaining any of those listed in Part 2 of Art. 137 types of debt that the employee has 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 component parts due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money to be paid (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 unequivocal answers to the questions arising from law enforcement officers related to the timing and sources of deductions, their size and other accompanying 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 paragraph of the second part of 2 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 h. 2 tbsp. 137 looks like this. Deductions from the employee's salary to pay off his debts to the employer can be made to reimburse the unearned 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 the potential salary due in full for work in a specific month, as a result of which it turned out that the final salary was charged less than the amount of the salary advance already received;
- the lack of legal significance of the reason for the employee not working the full salary, from which the employer established the amount of the salary advance (for example, the employee's illness, his involvement in the performance of public or state duties), when he retained the average earnings, or his dismissal from work, etc.
Let me remind you that there is no normative requirement on the percentage or other ratio between the amount of the salary advance and the amount of the monthly salary set for the employee in the Labor Code of the Russian Federation. As for the Decree of the USSR Council of Ministers of May 23, 1957 N 566 "On the procedure for payment of wages to workers for the first half of the month", acting in accordance with Art. 423 of the Labor Code of the Russian Federation in the part that does not contradict the Code, then 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 term for the employer to make a decision on the compulsory deduction of the difference between the paid salary advance and the accrued salary cannot exceed a month from the date of the end of the period established for the employee's voluntary return of the salary advance. The question immediately arises: in which normative legal act is it established exactly the period for the voluntary return of the salary advance by the employee, which was overpaid against the salary? There is no answer to this question! Consequently, there is no legal mechanism for withholding this advance, available for its application at the employer level, and not at the court, which can sometimes afford to apply general legal methods to overcome legal gaps in order to make a decision on the withholding of this type of employee debt;
- challenging by the employee of the grounds and amount of the deduction. This rule requires additional regulation up to the clarification of the legal mechanism for its implementation, at least in bylaws. As already noted, the employee can find out about this type of withholding only on the day of payment of wages and on the condition that the employer observes the rules set out in parts 1 and 2 of Art. 136. Suppose, at the next payment of a salary, its advance exceeded the amount that the employer, under an employment contract, should have accrued to the employee, but there are no other payments due to the employee. In this case, the employee's debt will be indicated on the payroll, and until the day the next salary advance is paid to him or the final payment of the remaining 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 withholding of the allegedly overpaid amount already made by him, can we talk in a real situation? Thus, the defective norms of labor legislation in this type of retention have no alternative leads to an employee's appeal to the ORITS or administrative authorities for the protection of his right to remuneration.
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 defining the rules for deduction from wages on the basis of par. 3 h. 2 tbsp. 137, allows us to say that almost all the problems characteristic of withholding on the basis of par. 2 h. 2 of this article are also inherent in this case. So, this paragraph allows deduction from the employee's salary to pay off his debt to the employer, formed due to an unspent and timely non-refunded advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases. Such cases can be any so-called payment of money on account of the salary associated with the acquisition, for example, household equipment for a subbotnik or stationery, or receiving funds for payment in a specialized workshop for refueling cartridges for office equipment, etc.
In contrast to the unresolved problems with the term for the previously considered case (paragraph 2, part 2 of article 137), here the term for the voluntary-mandatory return of the travel advance by the employee in the regulatory legal act is set and is equal to three working days, calculated from the moment of his return from a business trip to place of permanent work.
In this case, 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 the business trip is located. Requirement to be fixed in the ticket vehicle the date of arrival at the location of the organization that sent the employee, excludes the possibility of traveling on a business trip on its own transport and pedestrian movement. Thus, the registration in the ticket of a place of arrival of the vehicle other than the location of the organization is not recognized as the day of arrival from a business trip, which affects the time from which the time period for the timely return of the unspent part of the business trip advance received by the employee will be calculated. In accordance with clause 26 of the Regulations on the specifics of sending workers on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749, an employee upon returning from a business trip is obliged to 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 for travel expenses issued to him before leaving on a business trip.
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 designated 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 did not report to the employer on the fully spent amounts of the travel 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 there is no doubt for him the basis and amount of deduction, which the employer intends to make from his next salary. If the employee does not give written confirmation of consent both with the grounds and with the amount of retention of this allegedly his debt, the employer will have to realize his claims for a certain amount through the court, which, as it turned out, did not receive a logical conclusion in the labor relationship.
It follows from the established practice for this type of retention: if the advance report on a business trip was approved, the recovery from the employee of any amounts related to it can be made only by a court decision and provided that after the approval of this report, abuse of the right was found and ( or) falsification of documents by the employee.
However, speaking of other cases contained in par. 3 h. 2 tbsp. 137, which indicates an unlimited number of reasons with which the legislator connects the issuance of an advance payment by an employer to an employee, in particular, to someone transferred to another job in another locality, it should be noted that there is no legitimate opportunity to determine the moment of the advance payment that has not been returned in time. 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, which was formed due to this type of advance payment not voluntarily returned. By the way, Art. 169 of the Code does not oblige the employee to voluntarily return such an advance, as it does not oblige him to establish a deadline for the return in a contractual manner. In addition, it is not docked with Art. 137, since in it the employee's move to work in another locality is not associated with the performance of only other, and not any, work there. 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 basic meaning has the meaning “other than is, not the same”). In connection with this clarification, moving to work, to another locality, formally excludes the possibility of an employee in a new locality performing work similar to that previously performed by him, which literally limits the cases of issuing this type of advance.
The legislator's failure to indicate specific reasons for the employee's move to work in another locality, with which the advance payment is associated, is also subject to a negative assessment, since these reasons are heterogeneous. So, 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 with 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 deduction from the employee's salary to pay off his debts to the employer and return the amounts overpaid to the employee due to counting errors, as well as amounts overpaid to the employee, in the event that the ORITS recognizes the employee's guilt in non-compliance 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 deduction 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 inherent in this case as well.
In the investigated relevant acts of the period specified in Part 3 of Art. 137, no, and the employee can pay off these debts at a time not limited by law, if the employer does not convince him of determining such a period in a special written agreement. Thus, once again it can be stated: the employer has no legal opportunity to withhold within a month from the employee's salary the amount to pay off his debt, which has arisen due to the amounts overpaid to him as a result of both the accounting errors of the accountant or the computer operator, and the employer did not find out in a timely manner. the employee's fault in non-compliance with labor standards and (or) the occurrence of downtime.
Attention is drawn to the legal depravity of withholding due to a counting error committed by the actual employer. After all, the reason for this type of retention 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, not knowing that he received it unnecessarily. Consequently, he really cannot return exactly those banknotes that were unnecessarily issued to him, he will only return his other money, which makes up 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 the incorrect application of labor legislation or other regulatory legal acts containing labor law norms. An example of such an error may be an excessively accrued 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 attributed to the employer's administration.
There are also ambiguities in the withholding (refund) of amounts overpaid to the employee, if the ORITS recognizes his guilt in non-compliance with labor standards (part 3 of article 155) or downtime (part 3 of article 157). Part 3 of Art. 155 it is determined that in case of non-fulfillment of labor standards, non-fulfillment of labor (official) duties through the fault of the employee, payment of the standardized part of the salary is made in accordance with the volume 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 performing it 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 idle time, then, being, for example, a pieceworker or a lump-sum employee, he will not receive compensation for the lost time, therefore, keeping silent about the idle time is not in his interests. This means that the silence about the simple is beneficial only to an employee who is on a salary or a time wage. 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 standardized task, which should not remain without an assessment with side of the employer's administration.
Thus, only from the moment the representatives of the employer record both non-fulfillment of labor standards and the beginning of the employee's downtime, these documented facts can be recognized as grounds for not calculating the standardized part of the salary. Then a clarification procedure will be required, for whose negligence the guilt of specific persons in the occurrence of these events was not established from the moment they occurred to the moment the employee was paid in full. Moreover, there is no definition of the concept of "standardized part of wages" 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 standardized task, it is impossible to talk about non-fulfillment of labor standards, in particular, production standards or time, and even more about non-fulfillment of the standard of labor duties by an employee who is on a salary (Articles 160 and 163). Consequently, part 3 of Art. 155, which contains unclear provisions, is a potential source of disagreement between employee and employer.
So, when withholding debt on the basis of par. 4 h. 2 tbsp. 137, many questions of a practical nature arise, related both to the determination of the employee's guilt in the payment of excessively accrued amounts to him, and to 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 admission of the employee's guilt in the occurrence of these events or by the commission on labor disputes(hereinafter - CCC), or by 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 to property that is in the employer's responsibility (Article 238, 248, 391 and 392 of the Labor Code of the Russian Federation).
Consequently, in order to restore justice, the employee himself (!) Must apply to the ORITS with a statement admitting his guilt or committing illegal acts. Therefore, either the employee's debts 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 withholding, 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 a question arises that remains unanswered in the Labor Code of the Russian Federation: how can the employer legally protect his interests and rights in cases related to Art. 137? To get out of this situation, the employer, when going to 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 protection of violated rights. As you know, the Supreme and Constitutional Courts of the Russian Federation through the interpretation of 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 defend 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 defining in the aggregate the rules for withholding from wages on the basis of par. 5 h. 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 para. 5 h. 2. So, deductions from the employee's salary to pay off his debts 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 clause 8 of part 1 of Art. 77, clauses 1, 2 and 4, part 1 of Art. 81, as well as clauses 1, 2, 5, 6 and 7 of Part 1 of Art. 83 of the Labor Code of the Russian Federation.
From the above, 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 debt from the funds owed to the employee "for the calculation", but proportional to the days he has not worked on all vacations that he received in advance. In par. 5 h. 2 tbsp. 137, the legislator did not specify the types of vacations used by the employee in advance, but summarized them with the concept of "annual paid vacation". According to Art. 120 of the Code, the duration of annual paid leave is determined by summing up the main and all additional paid leaves due to the employee, calculated in calendar days, and is not limited to the maximum limit.
Thus, the leave granted to the employee before dismissal may look, for example, as a combination of leaves for different working years, which the employee was able to use only partially in connection with his recall from the leave, and deductions, as you know, contrary to common sense, are not permissible (Art. . 125 Labor Code of the Russian Federation). It can also be an extended vacation due to joining the next, but advance vacation of the transferred vacation that has not been used by the employee over the past years (Article 124). Any combinations significantly complicate the possibility of returning paid vacation funds to the employer that were not worked out by the employee, taking into account the instructions of Art. 137; only deduction from wages 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 possibility of referring to other payments to retain the employee's debt upon dismissal.
Nevertheless, the employer, making the final settlement upon dismissal of an employee, has the right to withhold amounts in proportion to any unworked, but fully paid leave. For this purpose, the calculation of the time worked specific employee in the working year for 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 main and additional leave.
Unlike the rules that apply to par. 2 - 4 h. 2 tbsp. 137, withholding in the case referred to in para. 5 h. 2 of this article (refund of amounts for unworked vacation days), is not limited either by the time frame or by the observance of the procedure for challenging the grounds and amount of this type of deduction. In addition, this type of deduction can be made at a time or with an installment plan of penalties 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 collection and deduction itself is limited only to the amount proportional to the payment of advance leave days not worked 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 "on account" received upon dismissal immediately after the used, especially the total leave, the salary component may be close to zero, and it is impossible to formally deduct from other payments due to the employee at this moment.
So, the Labor Code of 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 Art. 122). The duration of such leave is established by law and other acts for both the main leave and for all additional leaves due to the employee with payment in accordance with Art. Size 139. Consequently, in any case, based on the rules of Art. Art. 114 - 116 and 120, the employee is provided with annual paid leave of a set duration and with the preservation of average earnings, which, on the basis of Part 9 of Art. 136 is also paid in advance, namely not 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? It is this outdated norm of legislation that gives rise to the problems referred to in the analyzed paragraph. 5 h. 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 a timely and full payment of a fair salary to any specified authority, and the employer does not have such an opportunity to withhold debts from the employee on the basis of the norms of the Labor Code of the Russian Federation.
Summing up, we note the following. The Labor Code of the Russian Federation and its accompanying regulations in the regulation of the procedure for withholding amounts of debt from the employee's salary, other regulatory legal acts do not contain comprehensive answers to the complex ones discussed above. practical issues... At the same time, based on the analysis carried out, it is clear that it is necessary to introduce an unambiguous rule into the Code, according to which the employer has the right to sue 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 the indisputable manner provided for by the current labor legislation is excluded. Consequently, in order to remedy the situation that has arisen, it must be admitted that debts not paid off by an employee upon dismissal are an independent type of damage caused to the employer, since non-repayment of debts actually reduces the size of his property. To do this, you must at least make the 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
Assistant professor
Department of Labor Law
and social security rights
Faculty of Law
Academy of Labor and Social Relations
Signed to print
18.05.2009

 

It might be useful to read: