Deduction from employee salaries. Deduction from wages - the procedure for deductions according to the Labor Code of the Russian Federation, Abs 4, Part 2, Article 137 of the Code

ST 137 of the Labor Code of the Russian Federation.

Deductions from the employee's wages are made only in 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
labor law), cannot be collected 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 an employee's wages may 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 in the 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 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 employee's position in comparison with that provided for by law.

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

3. At present, other codes and federal laws establish the possibility of deduction from wages when collecting taxes from the income of individuals, when collecting fines as a criminal punishment, when serving a sentence 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 withholding 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 the court's verdict. In accordance with Art. 40 PECs, deductions are made from the convict's salary in the amount established by the court's verdict. The correct and timely deduction from the wages of the convict and the transfer of the amounts of deduction in the prescribed manner are entrusted to the employer. 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" collection on wages may be levied in the 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's funds and other property to fulfill the requirements of the court order 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 employer's order to withhold the advance from wages can be made if two conditions are met: 1) the employee does not dispute the grounds and amounts of the deductions; 2) the order is made no later than one month from the date of the expiry 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 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 payment issued against wages, such a period is established by agreement of the parties to the employment contract.

For an advance paid 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 specifics of sending workers on business trips, approved by 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. A 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 the 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 recovered in court.

Amounts overpaid due to improper application of pay law, collective agreement, agreement or employment contract, 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 an employee is dismissed on the grounds provided for in clause 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 for 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.

In Art. 137, 138 of the Labor Code of the Russian Federation established the procedure for withholding amounts from the employee's earnings and restrictions on their size. Detentions are allowed only in cases stipulated by the Labor Code and federal laws. The establishment of rules and restrictions is aimed at ensuring the protection of workers' wage rights.

General order

Deductions from the employee's earnings to pay off the debt arising from him to the employer are carried out in order to:

Compensation for the unearned advance provided to the employee against salary.
Repayment of an unspent and non-refunded advance payment provided to an employee in connection with a transfer to another location for another job or a business trip, or in other cases.
Refund of amounts paid to an employee in connection with accounting errors, in case of admission of the employee's guilt in non-compliance with labor standards or in idle time. In the latter case, the basis is the decision of the body authorized to consider individual labor disputes.

According to provisions of Part 2 of Art. 137 of the Labor Code of the Russian Federation, deductions are allowed upon dismissal of an employee until the end of the year for which paid leave was provided. The retention is made for unworked days. An exception to the rule under Art. 137 of the Labor Code of the Russian Federation, there are cases of termination of the contract on the grounds established in Article 77 (Part 1, Clause 8), Art. 81 (part 1 p. 1, 2, 4), art. 83 (p. 1, 2, 5, 6, 7).

The timing

As established in Part 3 of Art. 137 of the Labor Code of the Russian Federation, the employer may issue an order to withhold those specified in para. 2, 3, 4 of the second part of the norm, before the expiration of 1 month. from the date of completion of the period set aside for the return of an advance, incorrectly calculated payments or repayment of a debt. This rule applies if the employee does not object to the grounds and amount of the retention.

Exceptions

They are provided for in Part 4 of Art. 137 of the Labor Code of the Russian Federation. Salary overpaid to an employee cannot be collected from him, except in the following cases:

Calculation errors.
When a citizen is admitted to be guilty of simple or non-compliance with labor standards, which is confirmed by the labor dispute commission.
Excessive payment of earnings due to illegal actions of the employee, established by the court.

Art. 137 of the Labor Code of the Russian Federation with comments

The content of the norm is consistent with the provisions of the ILO Convention "On the Protection of Wages". Article 8 of this document provides that deductions from earnings can be made within the limits and in the manner enshrined in national legislation, in collective agreements or decisions of arbitration courts. Employees must be familiar with the established rules.

It should be noted that domestic legislation does not provide for the possibility of making deductions on the basis of a collective agreement, since the relevant conditions would worsen the position of the citizen in comparison with those established in the legislation, which is unacceptable.

Any deductions at the discretion of the employer related to the imposition of part of the production costs on the employee, satisfaction of claims made by third parties to both parties of legal relations (employer and employee) without a court decision or the employee's consent are prohibited.

Taxation

Within the meaning of Part 1 of Art. 137 of the Labor Code of the Russian Federation, deduction from an employee's earnings can be carried out in the case directly established in federal law. Currently, the Tax Code provides for the obligation of the employer as a tax agent to calculate and transfer personal income tax to the budget.

Withholding tax is made according to the rules of Art. 226 NK. Moreover, its amount cannot exceed 50% of the salary. Withholding is carried out directly from income at the time of actual payment.

Penalties

They also refer to the deductions permitted by Art. 137 of the Labor Code of the Russian Federation. The Code of Administrative Offenses contains Art. 32.2, according to the provisions of which the fine must be paid by transferring / depositing a set amount to a bank or other organization.

In case of non-payment on time, a copy of the resolution on the imputation of this administrative sanction is sent by the authorized body / employee to the employer for the forced deduction of the amount from the guilty person's earnings.

A fine can also be imposed on the perpetrator as a criminal penalty. The collection of the established amount is carried out in accordance with a court judgment.

As determined by 31 persons must deduct the fine imputed to him before the expiration of a month from the date of entry into force of the court decision.

If the order is not fulfilled voluntarily within the established time limit, the execution may be levied on the property of the guilty party. If the amount of recovery is less than 2 minimum wages, the material assets of the person are not enough to pay off the debt, it is allowed to withhold the amount from the guilty's earnings. Control over the execution of court orders is assigned to the employees of the FSSP.

Deduction during correctional labor

They are also made on the basis of a sentence.

According to the provisions of article 40 of the PEC, deductions are made from the convict's earnings in the amount determined by the court. Timely and correct collection of the established amounts shall be the responsibility of the employer. The retention rules are enshrined in article 44 of the PEC.

Enforcement proceedings

It is carried out on the basis of documents issued by court orders / decisions, settlement agreements, etc.

According to article 64 of the Federal Law No. 119, deduction from wages can be carried out to collect:

periodic payments;
amounts of no more than 2 minimum wages;
debts in the absence of property sufficient for the debtor to pay off obligations.

Nuance

The legislation provides for the possibility of making a deduction from wages to pay off the employee's debt to the employer in the cases established by Art. 137 of the Labor Code of the Russian Federation, and as compensation to the latter for property damage.

The rules for reimbursing losses to the employer are enshrined in article 248.

Advance debt

Unused funds given to an employee in connection with a business trip, transfer, etc., must be returned to them voluntarily. The employee must report on the costs incurred. In case of evasion of a refund, the amounts will be collected compulsorily.

In this case, 2 conditions must be met:

The employee does not dispute the grounds and amount of the penalty.
The employer issued an order before the expiration of one month from the expiration date of the period provided for the return of the advance amounts.

Explanations for Part 3

Employee objections must be made in writing. The employee in his application may refer to the illegality / unreasonableness of the withholding of amounts, as well as an incorrect determination of the amount of the recovery.

The deadline for the return of the unused advance payment provided against the salary is determined by agreement of the parties. For amounts issued in connection with a business trip, the refund period is 3 days from the date the employee returned.

Unworked vacation days

When an employee is dismissed before the end of the year for which he was granted leave, the deductions provided for in the 137 rate are made at the time of the Rules for the provision of paid rest days is enshrined in Article 122 of the Code.

The list of exceptions to this rule is directly enshrined in Part 3 137 of Article and is considered exhaustive.

Counting error

In practice, there are frequent cases of excessive payment of salary amounts to a citizen due to incorrect arithmetic actions of the person responsible for the calculations.

To withhold such amounts, 2 conditions must be met, which were mentioned above: the absence of objections from the employee and the employer's compliance with the monthly deadline for issuing a collection order. In case of missing the specified period, the amounts can be withheld only in court.

When implementing the provisions of Part 4 of Art. 137 of the Labor Code of the Russian Federation, one important nuance should be taken into account. Incorrect application of the legislation governing the procedure for remuneration of labor, the terms of a collective agreement or an employment contract cannot be recognized as a counting error. Accordingly, overpaid funds in such cases are not subject to collection. Withholding of these amounts can be challenged in court.

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 wages to pay off his debts to the employer can be made:

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 in paragraphs two, three and four of part two of this article, the employer has the right to make a decision on deduction from the employee's salary no later than one month from the end of the period established for the return of the advance payment, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amount of the deduction.

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 collected 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. The employer does not have the right to make deductions from the wages of employees at his own discretion and in the amount determined by him. The list of permissible deductions (for example, taxes, fines, alimony, etc.) and the procedure for their production are established by the Labor Code and other federal laws.

2. As a general rule, salaries paid to an employee in excess may not be collected from him by the employer, with the exception of cases established by law.

Second commentary on Article 137 of the Labor Code

1. The deductions from the 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 entered into force, the original version of which was significantly amended by 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 personal income is set at 13%, unless otherwise provided by the Labor Code.

2. Other cases stipulated 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 the 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 directly specified in the 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 when the employer has the right, at his own order, to make them out of the wages owed to the employee. This list includes a number of grounds previously provided for 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: for the return of the advance payment that has not been worked out by the employee, given to him on account of his wages; to pay off an unspent and timely non-refunded advance received by the employee in connection with a business trip or transfer to work in another locality (in other cases, the employee receives on account the sums of money that were not spent and not returned); to recover amounts overpaid due to counting 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 admission of his guilt in non-compliance with labor standards or simple, when the employee's guilt is established by the body for considering individual labor disputes.

In all of the above cases, the employer has the right to make deductions only within a specified period of time - no later than one month from the date of the end of the period established for the return of the advance, repayment of debt 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 the employee's salary, as before, the Code provides for the 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. At the same time, a number of exceptions are provided when no deductions are made. As a new basis, dismissal is provided for. Other exceptions, as before, include dismissal due to: liquidation of an organization or termination of activities by an employer who is an individual (clause 1 of article 81); reduction in the number or staff of the organization's employees (clause 2 of article 81); the employee's inconsistency with the position held or the work performed due to the state of health in accordance with the medical report (subparagraph "a" of clause 3 of article 81), is now not included in the number of grounds for exempting the employee from deduction from the wages owed to him, since this basis for dismissal is not provided in the new edition; with a change in the owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant); conscription of an employee to military service or sending him to an alternative civilian service replacing it (clause 1 of article 83); reinstating an employee who had previously performed this work at work, by decision of the state labor inspectorate or the court (clause 2 of article 83); recognition of the employee as completely incapacitated for work in accordance with the medical report (clause 5 of article 83); the death of an employee or employer - an individual, as well as the recognition by a court of an employee or employer - an individual as deceased or missing (clause 6 of article 83); the onset of extraordinary circumstances that prevent the continuation of labor relations, if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the corresponding constituent entity of the Russian Federation (clause 7 of article 83). In the new edition, the above exceptions were also supplemented by dismissal under clause 8 of Art. 77 of the Labor Code of the Russian Federation.

Dismissal on the initiative of an employee for valid reasons (in connection with admission to school, transfer to retirement and in other cases) is no longer an exception when deduction for unworked vacation days is 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 carry out the retention only if the employee's illegal actions are established by the court.

6. It is not allowed to deduct from the employee's wages by order of the employer in cases other than those provided above. So, an employee cannot be charged wages that were paid to him in excess due to the incorrect application of laws or other regulatory legal acts, for example, the size of the rate (salary) was incorrectly determined according to the staffing table or the official salary scheme; the tariff category is incorrectly determined, etc.

7. The commented article does not contain one more ground for deduction from the employee's salary 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, which does not exceed the average monthly earnings (see the commentary to Art. 248).

Practice shows that the occurrence of a labor dispute between and the employer regarding 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 of the funds earned by an employee is possible only in situations that are fixed in the Labor Code or are affected by other federal laws.

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.

Withholding a certain share of the employee's salary in order to timely arise before the employer is possible 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 at one time not returned advance, issued on the occasion of a business trip or, if it took place in another region, etc.
when making a refund of amounts that were paid to an employee as a result of counting errors, as well as those amounts that were excessively 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 decide on 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 that have been excessively given to an employee cannot be collected from him in specific cases:

if there was a counting error;
if the authority considering such facts recognizes the employee's share of the fault in non-performance or violation of labor standards, simple;
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

The Labor Code will answer all questions

In accordance 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: incorrect application of the relevant legal provisions, erroneous transfer of a sum 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, it is possible to do this only if the employee's fault is established by a special body.

They can withhold their wages for the payment of alimony, the payment of 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 some 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 presence 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 in the event that its excessive payment is associated with the incorrect application of laws or regulations of a different kind (meaning, incorrect determination of the size of the 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:

Labor Code of the Russian Federation:

Article 137 of the Labor Code of the Russian Federation. Limitation of deductions from wages

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 wages to pay off his debts to the employer can be made:

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;

counting error;

if the salary was paid to the employee in excess in connection with his illegal actions established by the court.

Return to the table of contents of the document: Labor Code of the Russian Federation in the current edition

Comments on Article 137 of the Labor Code of the Russian Federation, judicial practice of application

Deduction for unworked vacation days upon dismissal of an employee. Arbitrage practice
Statement of claim for the recovery of unlawfully withheld amounts from wages from the employer
other examples of claims in the section"Claims for the collection of funds from the employer and from the employee"

Clarifications of the Supreme Court of the Russian Federation in reviews of practice

The Review of Judicial Practice of the Supreme Court of the Russian Federation for the third quarter of 2013 "(approved by the Presidium of the Supreme Court of the Russian Federation on 02/05/2014) contains the following clarifications:

In the event of the dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, the debt for unworked vacation days is not subject to collection in court, including if the employer was unable to withhold this amount from the payable wages during the calculation. payment due to its insufficiency.

In accordance with the fifth paragraph of Part 2 of Art. 137 of the Labor Code of the Russian Federation, deductions from the employee's wages 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.

According to Part 4 of Art. 137 of the Labor Code of the Russian Federation, 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 the body for the consideration of individual labor disputes recognized the employee's guilt in failure to comply with labor standards (part 3 of article 155 of this Code) or simple (part 3 of article 157 of the Code); if the salary was paid to the employee in excess in connection with his illegal actions established by the court.

Similar provisions are provided for by Part 3 of Art. 1109 of the Civil Code of the Russian Federation, limiting the grounds for collecting wages provided to a citizen as a means of subsistence, as unjust enrichment in the absence of his dishonesty and counting error.

Provided by art. 137 of the Labor Code of the Russian Federation, art. 1109 of the Civil Code of the Russian Federation, legal norms are consistent with the provisions of Art. 8 of the Convention of the International Labor Organization of July 1, 1949 N 95 "Concerning the protection of wages", Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, mandatory for application by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation, art. 10 of the Labor Code of the Russian Federation, and contain an exhaustive list of cases when it is allowed to collect overpaid wages from an employee.

Thus, the current legislation does not contain grounds for collecting the amount of debt in court from an employee who used a vacation in advance, if the employer, in fact, during the calculation was unable to make a deduction for unworked vacation days due to insufficient amounts due in the calculation (paragraph 5 of the Review of judicial practice of the Supreme Courts of the Russian Federation for the third quarter of 2013 "; approved by the Presidium of the Supreme Court of the Russian Federation on 02/05/2014).

The Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the second quarter of 2010 (approved by the Decree of the Presidium of the Armed Forces of the Russian Federation of September 15, 2010 contains the following clarifications:

Wages overpaid to an employee through no fault of his own and not due to a counting error shall not be subject to collection in favor of the employer

The review of the Supreme Court of the Russian Federation provides an example of resolving a dispute on the recovery of overpaid wages to an employee. The following is indicated.

Having recognized that the sum of 59210 rubles 73 kopecks is unjust enrichment, the court disregarded that these funds were paid to the plaintiff as wages.

The Supreme Court of the Russian Federation, disagreeing with this conclusion, indicated that according to Art. 137 of the Labor Code deductions from the employee's wages are made only in cases provided for by this Code and other federal laws

Wages overpaid to an employee (including in case of incorrect application of labor legislation or other normative legal acts containing labor law norms) cannot be collected from him, except for the following cases: counting error; if the body for considering individual labor disputes has found the employee to be guilty of failure to comply with labor standards or simple; if the salary was paid to the employee in excess in connection with his illegal actions established by the court.

Provided by art. 137 of the Labor Code, legal norms are consistent with the provisions of the International Labor Organization Convention of July 1, 1949 N 95 "Concerning the protection of wages" (Art. 8), Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, mandatory for application by virtue of Part 4 of Art. 15 of the Constitution of the Russian Federation, art. 10 of the Labor Code and contain an exhaustive list of cases when it is allowed to collect overpaid wages from an employee, including if the mistake was the result of improper application of labor legislation or other regulatory legal acts containing labor law norms. Such cases, in particular, include cases when the wages were paid to the employee in excess in connection with his illegal actions established by the court, or as a result of an accounting error (clause 5 of the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2010; approved . By the Decree of the Presidium of the RF Armed Forces of 15.09.2010).