Can the organization withhold wages. Algorithm of actions of the employee according to the labor code in case of delay in wages. Should the employer, in the event of a delay in the payment of wages, pay it, taking into account compensation for non-pecuniary damage

Pay wages- a process that is very strictly regulated by the Labor Code. In the employment contract with the employee, all the main points regarding the implementation of job duties including the payment of salaries. In addition, the exact dates for the issuance of money are fixed in the internal documents of the company. Is it possible to violate the deadlines, we will consider in the article.

When can employees receive remuneration for their work?

The terms of payment of wages in the company are strictly regulated, and are also enshrined in the Labor Code in articles 136, 140 and 141. Currently, you should focus on the following points:

1. Wages must be paid out twice a month - the first part (advance on salary) before the last day of the month, and the second part (the actual salary) no later than the 15th day. However, it is not advisable to set the dates exactly on the 15th and 30th. It is necessary to do this, for example, on the 20th and 5th of the month. This procedure for issuing remuneration to an employee is provided for by Law No. 272-FZ and Article 136 of the Labor Code of the Russian Federation
2. Payments upon dismissal of an employee are regulated by article 140 of the Labor Code of the Russian Federation. They must be carried out on the last working day, that is, on the day of dismissal. If it is impossible to transfer money to the employee on time, for example, due to his absence, then at the first request of the employee, the money must be paid
3. Holiday payments are made at least three days before the start of the holiday.
4. If the employee has died, then all payments due to him will be received upon application by his relatives, within seven days from the date of submission of documents

Salary delay and compensation for its delay

Currently, the legislation is such that the employer is obligated to set the exact payment deadline and strictly follow it. In case there is a delay in payments, even for one day, the employer owes the debt itself and compensation for the delay.

Article 236 of the Labor Code of the Russian Federation says that compensation for delay should be at least 1/150 of the key rate. The compensation payment is accrued for those amounts that were delayed, and is paid along with the salary.

If desired, the employer can increase the amount of compensation, but this is quite rare. In most cases, employers do not want to pay even the minimum compensation.

It is also worth noting that compensations are included in the base for calculating the amount of insurance premiums. But personal income tax is not charged on such an amount. Also, the amount of compensation cannot be taken into account in the cost of profit.

The employer must inform employees about the compensation due to them and pay it voluntarily if necessary.

Compensation calculation example

Let's assume that in Romashka LLC, the payment terms are set on the 20th and 5th of the month. On the 20th advance payment is paid, on the 5th - salary.

Due to the lack of funds in the current account, the director's salary in the amount of 30,000 rubles was paid not on the 5th, but on the 10th. Thus, the delay was 5 days.

Let's calculate the amount of compensation:

30000 rub. * 1/150 * 7.25 * 5 days = 72.50 rubles

It turns out that for 5 days of delay in wages, the director alone will have to pay 72.50 rubles. This amount is subject to insurance premiums.

A similar calculation is made in the event that the delay was only 1 day.

What to do if the employer delays wages

When an employer delays the payment of wages, it is unpleasant. The delay can occur for various reasons. But in any case, employees have some leverage over the employer in such a situation.

• As already mentioned, for any period of delay, even for 1 day, the employer must pay compensation to his employees. The employee has the right to demand such payment
• If the full or partial amount of earnings is delayed for more than 15 days, employees have the right to suspend the work process. This right is enshrined in article 142 of the Labor Code of the Russian Federation. In this case, the refusal to work must be notified to the employer in writing. When the debt begins to be paid, employees are also notified of this on paper, and after that the refusal to fulfill their labor duties will be regarded as absenteeism
• If payments are delayed for more than 15 days or penalties are not paid, the employee can apply to regulatory authorities, the prosecutor's office and even to the court

However, in most cases, it does not come to extreme measures. Arranging proceedings is usually not beneficial to either the employee or the employer. Often there is a compromise that suits both parties.

Actions of the employee in case of refusal to pay compensation

Some employers not only delay wages, but also do not want to pay compensation for their delay. Firstly, the amount is often so small that the employer sees no reason to accrue and pay such amounts. Secondly, if compensation is paid, then this is an additional cost.

If the employer does not want to pay compensation, the employee can write a free-form application containing a request for payment.

If payment is not made and if there is an application, then the employee can safely apply to the labor inspectorate, court or prosecutor's office.

The main types of liability for delayed wages

Since the delay in payment of wages is a violation of labor law, liability is provided for this. It is divided into several types, depending on how much and for how long it was delayed.

Disciplinary responsibility for the director in case of delay in payments

The entire responsibility for non-payment of wages lies with the head of the organization. In the event of a delay, the director of the company can be reprimanded, reprimanded, and even dismissed for especially serious violations.

In addition, if there is a trade union at the enterprise, it can also give its assessment of the current situation and point out to the director that such situations are unacceptable. The appeal of the elected body to the director occurs in the form of an application. The manager reviews the document within 7 days. At this time, it is necessary to eliminate all errors, to punish the guilty. After carrying out all the activities, the head, also in writing, reports on the work carried out.

A disciplinary sanction is imposed for a period of 12 months.

Errors and questions on the topic

Question

What days are taken into account when calculating compensation - calendar days or business days?

The payment of compensation for delayed wages is regulated by Article 236 of the Labor Code of the Russian Federation. Since we are talking about compensation for each day of delay, calendar days are included in the calculation. The calculation of the number of days of delay should be carried out from the date following the due date of payment until the moment the salary is paid.

Mistake

The employer has delayed payment of wages. When the employee demanded compensation for the delay in payment, the employer referred to the fact that such compensation was not provided for and not fixed in the employment contract. In this case, the employer is wrong, because it does not matter whether the contract provides for the possibility of such payment or not. In the current situation, it is tedious to focus solely on the requirements of the Labor Code.

IN modern conditions measures are taken to comprehensively protect the rights of the employee to create comfortable working conditions and receive acceptable remuneration for work within the agreed time frame. An important point is the payment of wages on a date strictly established by the enterprise. This norm is established in the Labor Code and the regulatory authorities are very closely monitoring violations in this area. In 2020, delaying payments to employees even for 1 day threatens with a certain responsibility.

Any working person must receive a salary in a certain period and in full. This right is guaranteed by the labor code and Russian legislation (Article 21 of the Labor Code of the Russian Federation, Article 37 of the Constitution of the Russian Federation). This article gives full review what kind of punishment is provided for the management with a constant delay in payment.

The responsibility of the employer for the delay in the payment of wages in 2020 is manifested in the following types:

• disciplinary punishment (Article 192 of the Civil Code of the Russian Federation) can be incurred by both the employer himself and his official representatives who allowed non-payment of wages and violated other rules for remuneration.
• material punishment (Articles 234-236 of the Civil Code of the Russian Federation) manifests itself in the form of accrual and payment of interest to the employee for those days of delay that followed the day of salary delay.
• administrative punishment (Article 5.27 of the Code of Administrative Offenses of the Russian Federation) occurs only if the guilt of the head or his representative is proven.
• criminal punishment: if the mercenary motives of officials are proven, arrest for up to two years may follow.

Disciplinary responsibility

Delayed salary due to the fault of the head or official representatives is improper execution their direct duties. This may entail receiving one of the disciplinary punishments in the form of a remark, reprimand or dismissal (Article 192 of the Labor Code of the Russian Federation). If the facts of the violation are proven, the employer applies appropriate measures of influence to the management of the institution (Article 195 of the Labor Code of the Russian Federation).

To conduct an audit, a representative of the interests of workers (this may be a trade union) applies to the employer with a corresponding statement, which indicates violations by the management. The employer is given 1 week to consider this document (Article 370 of the Labor Code of the Russian Federation). Then he takes measures to eliminate violations, chooses the form of disciplinary punishment and notifies the applicant about this (Article 22 of the Labor Code of the Russian Federation).

The period of validity of this punishment is 1 year from the date of its issuance.

Material liability

This responsibility is imputed to the head for the delay in the payment of wages to employees. Employees have every right to demand payment from the employer, as well as to receive interest for its delay and compensation for moral damage suffered. At the same time, the fact for what reason there was a failure in the issuance of pay does not play any role. Find out more about the rights of workers in case of delayed payment of wages.

The employer has 15 calendar days for the issuance of wages from the time of the end of the period for its accrual (Article 136 of the Labor Code of the Russian Federation). Exact date payment is determined by the internal regulations of the institution and is supported by an appropriate agreement.

Compensation

Additionally

Compensation for late payment of wages:

• are not subject to personal income tax;
• are not taken into account in income tax expenses;
• are subject to insurance premiums for compulsory insurance in the same way as wages.

Since October 2016, the accrual procedure has changed. Interest is accrued in accordance with the key rate of 1/150 (Article 2 No. 272-FZ of July 3, 2016). For example, a company's fixed pay date is the 10th of each month. The employee's remuneration for January (50,000 rubles) was made on 02/20/2017. For 10 days (from February 10, 2017 to February 20, 2017 inclusive), taking into account the rate of the Central Bank of the Russian Federation (10%), compensation in the amount of 333 rubles was accrued.

Previously, this rate was 1/300. In this way, minimum size the amount for compensation is doubled by the Law. At the request of the employer, the amount of compensation can be increased and must be specified in the labor agreement or local regulatory act (Article 236 of the Labor Code of the Russian Federation).

Payment for overdue wages is the direct responsibility of the employer: the employee does not need to submit any documents or complain to higher management. Compensation is paid at the same time with the delayed salary amount.

Suspension of official duties

The employee may not come to workplace until the day of payment of wages, if the delay in wages exceeds 15 days (Article 142 of the Labor Code of the Russian Federation). You must communicate your desire to management in writing.

When management begins making payments, that employee is notified in writing. After receiving it, he must go to his workplace. If he did not do this, this act is regarded as absenteeism.

All days for the period of suspended work must be paid in the amount of the average wage (document No. 14-2-337 of the Ministry of Labor of Russia dated December 25, 2013). Read about payment for forced downtime due to the fault of the employer.

It is worth noting: on the issue of suspension labor activity there are some nuances. Such acts of self-defence are only legal in the event of a delay in the payment of wages. If the employee was not paid vacation pay, and he decided not to go to work after the vacation until they are paid, then this will qualify as absenteeism. To defend the payment of vacation pay on time, there is another mechanism of influence.

• military and civil servants;
• people supporting the life of people (electricians, doctors, etc.) or working in especially hazardous industries and equipment;
• when a state of emergency is declared.

Administrative responsibility

Punishment can occur only if the leader is guilty of failing to meet the deadlines for remuneration.

The employer is responsible for the delay in wages with the following consequences (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

• manager and individual entrepreneur: a warning or a fine of 1000-5000 rubles. Repeatedly ─ up to 20,000 rubles (part 4 of article 5.27 of the Code of Administrative Offenses of the Russian Federation), a ban on holding a position for no more than 3 years.
• fine for the institution: 30,000-50,000 rubles. In case of a repeated incident, a punishment of up to 70,000 rubles follows (part 4 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

Day off

If the deadline for issuing a salary falls on a weekend or non-working holiday, it is issued before this day (Article 136 of the Labor Code of the Russian Federation). For example, wages must be issued on the 8th of every month. Then cash for February 2017 are paid to employees on 03/07/2017 on Tuesday, since 03/08/2017 is a non-working holiday (International Women's Day). Information on paying for work on a day off according to the Labor Code can be found in the article. If these requirements are not met, the employer may be subject to an administrative fine.

Attraction to is possible only through the court. Administrative proceedings are initiated, the corresponding protocol is drawn up. If a delay in the payment of wages is detected, the state labor inspectorate issues an order for its repayment within a month. Salaries should be received not only by employees, but also by laid-off employees.

Inspectors control the process of remuneration, enter in a special register of employers who have violated the Labor Code. These data are submitted to the prosecutor's office.

About criminal liability for non-payment of wages, see the video

Criminal liability

This type of liability for delayed payment of wages occurs when one's own interests or monetary motives are proved and is punished by the following measures (Article 145.1 of the Criminal Code of the Russian Federation):

• recovery of up to 500,000 rubles;
• a fine commensurate with salary or other sources of income for the last 3 years;
• a ban on holding a certain position for no more than 5 years;
• forced labor for up to 3 years;
• arrest for no more than 3 years.

The measure of punishment is chosen depending on the type of non-payment. Partial non-payment of wages implies a payment of less than half of the due amount. Criminal liability occurs with partial non-payment for more than 3 months and the employer's selfish goals. Full non-payment is understood as non-payment of all earnings for 2 months or for the same period the payment of wages below the minimum wage. With proven malicious intent of the employer, he will face a more severe punishment than with partial non-payment.

The severity of the consequences is determined by the court through careful consideration of a particular case. The duration of the crime, the amount of wage arrears, the number of victims, etc. are taken into account.

Delaying wages for employees has significant consequences for the employer and the institution. You should be very careful about observing the terms of remuneration, otherwise problems cannot be avoided.

Have questions about employer liability? Ask them in the comments to the article

According to the provisions of the Labor Code, all employed residents of the country must receive wages on time, twice a month. Otherwise, the negligent employer will have to answer before the law. Legal aspects payments are regulated by the law on wage arrears in 2020.

All legal issues relating to the payment and delays in wages are regulated by the Labor Code of the Russian Federation. In the first reading, the bill was adopted by the deputies of the State Duma in 2001. The main basis for the formation of strong working relationships between the employer and the employee is considered to be a correctly drafted labor contract. The document protects the rights of the worker and guarantees that the court will take his side if the fact of delayed payment of wages is recorded.

The main provisions of the bill

According to current regulations, delays in cash deductions are not allowed. If such a violation occurs and lasts longer than 2 weeks, the employee has the right to terminate official duties until the funds are received. It is only necessary to inform the employer about this. In some cases, it is not allowed to stop activities. So, representatives of certain professions cannot do this:

• military personnel;
• social workers;
• employees of the Ministry of Emergency Situations;
• civil servants;
• representatives of the medical field.

If an employee went on strike due to non-payment of wages, he has the right not to come to work. Moreover, the employer will be obliged to pay him even for those days when professional activity was not conducted. It is forbidden to impose penalties for non-fulfillment of labor duties if the employee did not come to work due to delayed payments.

The official text of the Labor Code states that the employer is obliged to pay compensation to the employee for each day of delay. It is calculated as a percentage of the amount of the payment not received on time. The draft law also determines that administrative proceedings may be initiated against an unscrupulous employer.

In the most difficult cases, the head of the company in which wages are withheld can be held criminally liable. This usually happens when funds are not transferred for at least 2 months. Criminal liability is provided if it is proved that the head intentionally initiated the bankruptcy procedure of the company.

Changes in the Labor Code

The last amendments made to the bill concerned the establishment of compensation for delayed wages. The parliamentarians determined that the employer is obliged not only to pay the due amount in full, but also to pay the employee a percentage for each day of delay. According to current regulations, the payment should be 1.5% of the average monthly salary per day.

This percentage can be increased if specialists detect violations in a large volume, i.e. if the number of victims of the actions of an unscrupulous employer reaches several people. Compensation can be collected from the employer through a complaint to the labor inspectorate or by contacting other competent authorities.

Changes were also adopted to regulate the transfer of payments twice a month.

Punishment for salary delays in 2020 for employers

What to do if the employer delays wages

In addition to the suspension of employment, employees have additional leverage on an unscrupulous employer. If there is no money for two weeks, the employee has the right to file a complaint with one of the following departments:

• State Labor Inspectorate;
• prosecutor's office.

You can apply in writing, or you can report the violation by phone. In any case, specialists will conduct an investigation into the fact of the complaint received. At the same time, you can notify the employer of the temporary cessation of activities. It is worth contacting the prosecutor's office if funds are not transferred for more than two months, and complaints to the labor inspectorate have not brought results.

Do not forget that the employer is obliged not only to timely accrue payments, but also to issue payment documents to employees, which should contain the following information:

• number of working days;
• salary amount;
• the total amount of charges for the month;
• the amount of taxes withheld;
• final salary.

Employees' personal statements also include additional information about vacation pay, allowances for work on weekends and holidays etc.

Full details of payroll can be found in latest edition bill. We offer you to download the Labor Code from the following link.

When should wages be paid?

In each case, the date of transfer of payments is set separately. The term depends on the employment contract. It is important to observe the main rule - payments must be made twice a month. In any case, the first payment cannot be accrued later than the 15th day of each month.

Salary can be transferred to bank card employee, and can be issued in cash in person. In the latter case, it is required to sign the reporting sheet. If the payment day falls on a weekend, they must be calculated in advance.

How long can wages be delayed?

Under current standards, an employer can withhold wages for up to 15 days. If this period has expired, and the money has not been transferred, the employee has the right to apply to higher authorities and terminate the activity. Liability for delayed wages also applies to non-payment of the advance, and not only the principal amount.

The tenant may be held administratively liable. Depending on the period of delay in payments, the following sanctions are provided:

• a fine of up to 5 thousand rubles. official;
• a fine of 50 thousand rubles. for legal faces;
• imprisonment for a period of 1 to 3 years.

The Labor Code guarantees the timely payment of wages to employed residents of Russia. If there is a delay beyond the permitted period, the employee has the right to apply to any of the regulatory authorities with a complaint. In case of violation, the employer will have to pay compensation and a fine. And with the most serious delays, management also faces criminal liability.

Last modified: March 2020

Permissible intervals for making settlements with personnel, as well as the maximum possible time that must elapse between the performance of work and its payment, are established by law (Articles 136, 140, 141 of the Labor Code of the Russian Federation). Any deviation from these norms is unacceptable, however, the duration directly affects the severity of the sanctions applied to the employer.

What are the allowable payroll dates?

The entire list of restrictions on the dates of transfer of payment for the work done is enshrined in Art. , , Labor Code of the Russian Federation. At the same time, the terms for paying salaries depend on the specific circumstances of its accrual:

• For amounts for work performed, both systematic and one-time, it is necessary to adhere to the following parameters:
  • Payment occurs every half a month;
  • The transfer of money is carried out no later than 15 days after the end of the time period for which the accrual was carried out.
• The settlement upon dismissal is carried out on the last working day of the employee. If he did not go to work on the specified date, then the payment is made on the next day after he applied for a wage arrears;
• Transfer of vacation pay is carried out no later than 3 days before the start date of the holiday;
• The salary of the deceased employee, not received by him on the date of death, is paid to his next of kin within a week from the date they submit documents for its issuance.

There are no provisions in the legislative acts that allow delaying the salary of employees.

Can an employer withhold wages without consequences?

In general, unpunished delay in the issuance of wages, as already noted above, is impossible. According to the provisions of Art. 236 of the Labor Code of the Russian Federation, in any case, the employer charges the employee a penalty for each day of delay in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation, accrued from the amount of the debt.

But it is also necessary to take into account the provisions of Art. 142 of the Labor Code of the Russian Federation, which regulates the procedure for self-defense of workers. It gives the employee the right to temporarily suspend work only in the event of full or partial over 15 days. Based on this, the employee can initiate complaints to the inspection authorities, either only after the expiration of the specified period, or in case of non-payment of the above penalty, since this would be a direct violation of the Labor Code of the Russian Federation.

Thus, if the employer paid the salary with due penalties within 15 days after the date of its accrual established by local acts, most likely he will not suffer any more severe punishment.

What threatens the employer for delaying wages?

For those who have violated the terms of settlements with personnel, the legislation provides. Each of them depends on certain parameters, including the delay period:

• Liability, in the form of a penalty, occurs in any case, even if the deadline is not met by just 1 day;
• Administrative liability in the range from penalties to disqualification will be applied if the delay is more than 15 days, and the employee applied to the authorized bodies;
• It is used if there is a personal intent of the head in the following cases:
  • Complete non-payment for more than 2 months;
  • Partial (less than half of the amount) non-payment for more than 3 months;
  • Payment less than the minimum wage issued for more than 2 months.

In this regard, the employer should consider whether it is worth delaying wages at all.

21.11.19 13 098 9

And pay it off with insurance premiums

I am the director of a small company. Once we had a cash gap, and I experienced in my own skin what happens if you delay your salary.

paid a fine to the labor inspectorate

I’ll tell you what threatens the manager for delaying wages, how employees act to get their money, and what compensation is due to employees for waiting.

How wages are paid

The employer is obliged to pay wages every half a month. More often you can, less often you can't. The employer can determine the specific terms of payments on their own. They must be spelled out in at least one of three documents: an employment contract, collective agreement or internal labor regulations.

Moreover, a specific date is prescribed in the documents, and not a payment period. We did not know this, so we indicated the interval: paid no later than such and such a date. So convenient, but impossible.

When an organization violates deadlines, the counter is turned on. For each day of delay, you will have to accrue and pay compensation to the employee.

Compensation for delayed payment of wages under the Labor Code of the Russian Federation

Compensation is the liability of the employer for violation of financial obligations to the employee. It is paid for the delay not only of wages, but also of any other payments: vacation pay, bonuses, additional payments, severance pay.

For example, by labor code the employer must issue vacation pay no later than 3 days before the start of the vacation. If you are even a day late, you will have to pay compensation.

The organization must pay compensation, even if it is not at fault for the delay. For example, an accountant transferred a salary to an employee's bank card. The bank failed and the money arrived late. The employer has nothing to do with it, but he is still obliged to compensate the employee for waiting.

How to run a business without penalties

Earn more and not break the law. Once a month - in our mailing list for entrepreneurs

How to calculate compensation for delayed wages

When calculating, you need to correctly determine the amount of debt, the delay in payment and the key rate of the Central Bank, which was in effect during the delay.

What amount of debt to take to calculate compensation. The amount that the employee should have received in his hands, but did not receive, is taken into account. Therefore, personal income tax and other deductions, such as debts on writ of execution, alimony, must be deducted from the debt.

Suppose an employee's salary for the first half of the month is 20 thousand rubles. This means that he receives 17,400 rubles in his hands, minus 13% personal income tax. From this amount, compensation for the delay is calculated.

What size (percentage) for each day of delay to use. Compensation is charged in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation for each day of delay in payment. This is the minimum value, but more is possible if the employer has prescribed a higher rate in the internal labor regulations, labor or collective agreement.

If a cunning employer and a gullible employee agree that compensation is not accrued or is accrued in a smaller amount than required by the labor code, such a condition will be invalid.

Also, an increased rate can be prescribed in a regional, interregional, sectoral or territorial agreement. If the organization has acceded to such an agreement, it is obliged to comply with its terms.

What is the key rate and what is it equal to. This is the rate at which the Central Bank lends money to banks. Banks take this money and give it to people and organizations as loans, but at a higher interest rate.

A low key rate stimulates the economy, but provokes price increases and increases inflation. High - slows down the economy, but slows down inflation. The Central Bank is looking for a balance: raises or lowers the key rate based on the economic situation in the country.

For example, an employee was supposed to receive a salary on July 15, but received it on August 15. The first day of delay will be July 16, and the last day will be August 15. The deadline is 31 days.

Which formula to choose. In accordance with the labor code, the minimum compensation is calculated as follows:

Compensation \u003d Amount of debt × Number of days of delay × 1/150 of the key rate of the Central Bank

If the employer and the employee have agreed on increased compensation, documented this, then the terms of such an agreement apply. Then compensation is calculated as follows:

Compensation = Amount owed × Number of days overdue × Agreed interest rate for overdue

Calculation example No. 1. In the organization, salary is paid monthly in two parts: on the 25th of the current month - salary for the first half of the month, on the 10th of the next month - the final payment.

The employee's salary is 100 thousand rubles. The first part, 50 thousand rubles, was paid with a delay - not on June 25, 2019, but on July 1. The delay was 6 days.

Amount to be paid out:

The key rate in the specified period is 7.50% per annum. Consider compensation:

43,500 R x 6 days x 7.50% x 1/150 = 130.50 R

Calculation example No. 2. If the key rate changed during the delay, you need to calculate the compensation before and after the date of the change, and then add it up.

The organization also delayed the second part of the salary - 50 thousand rubles. I was supposed to transfer on July 10, and transferred on July 31. Until July 29, 2019, the key rate was 7.50% per annum, and then - 7.25% per annum.

Amount to be paid out:

50,000 R - 13% personal income tax = 43,500 R

43,500 R x 18 days x 7.50% x 1/150 = 391.50 R

43,500 R x 3 days x 7.25% x 1/150 = 63.08 R

Total compensation:

391.50 R + 63.08 R = 454.58 R

Personal income tax from compensation for late payment of wages

The minimum compensation for delayed payments is not subject to personal income tax. If the employer pays increased compensation, it all depends on how such generosity is documented.

The amount of compensation can be increased if it is prescribed in the labor or collective agreement, internal labor regulations. Then there is no need to pay income tax on these amounts.

It happens that nothing is written in the documents, and the employer issues increased compensation. Then the tax-free part is deducted from it - 1/150 of the key rate for each day of delay, and personal income tax will have to be paid from the rest.

For example, one company used compensation to avoid paying taxes. She set inflated amounts of compensation and deliberately delayed salaries.

Under the guise of compensation, employees received a salary that was not subject to personal income tax. But not all employees are so lucky: only CEO and the chief accountant is a husband and wife concurrently, and also an accountant is their son.

This optimization did not last long. The tax inspectorate saw through the scheme and assessed the tax on everything compensation payments. The organization tried to challenge this decision in court, but lost.

Insurance premiums for payment of compensation for late wages

The Ministry of Finance says that it is necessary to pay insurance premiums from compensation. The logic is like this. Insurance premiums are subject to all payments to the employee within the framework of labor relations. Compensation for delayed wages is accrued when there is an employment relationship. And if so, pay.

Courts do not agree with this position. It cannot be considered that any amount transferred to an employee is wages. Compensation for delayed wages is not wages and is not a payment within the framework of an employment relationship. This is the liability of the employer, provided by law. In the list of amounts that are not subject to insurance premiums, there are compensation payments related to the performance of labor duties. This is just such a case.

Here you have to choose - to defend your case in court or pay and sleep peacefully. The amount of insurance premiums from compensation is usually small, so you need to evaluate whether the game is worth the candle. It will take a lot of time and nerves for litigation, and the savings on fees will be a penny.

Accounting for compensation for late payment of wages in income tax expenses

Theoretically, compensation can be included in the composition of:

1. non-operating expenses - these include fines, penalties and other sanctions for violation of obligations under the contract;
2. labor costs.

But here it is worth considering the position of the Ministry of Finance. He believes that compensation is not labor costs, because it is not related to the conditions and mode of work. It also cannot be attributed to non-operating expenses, since it includes fines and sanctions accrued in the framework of civil law, and not labor relations. The Ministry of Finance concludes that compensation for delayed wages cannot be taken into account in any expenses when calculating income tax.

In this regard, the case may end up in court with the tax inspectorate. Previously, the courts took the side of employers. What will happen now in a particular case is unknown. If there is no desire to check, it is better to listen to the Ministry of Finance. For example, we decided not to take risks, so we did not take into account compensation in income tax expenses.

Procedure for payment of compensation for delayed wages

Compensation should be paid when its exact amount is known. Therefore, it is necessary to compensate for the expectation of the employee simultaneously with the issuance of overdue wages.

Compensation payment processing

When paying salaries, the organization is obliged to notify the employee in writing about the components of his remuneration, deductions and compensation. All this is indicated in the payslip. It must also indicate the amount of compensation for delayed wages, so that the employee knows how much and for what he received.

The calculation of compensation looks like this: debit 91-2 credit 73.

Payment through the cashier: debit 73 credit 50.

Payment through the current account: debit 73 credit 51.

Responsibility of the manager for late payments to employees

For delaying wages, not only financial, but also administrative or even criminal liability is threatened.

Administrative responsibility. An individual entrepreneur will be fined up to 5,000 rubles, the head of an organization - up to 20,000, and the organization itself - up to 50,000 rubles.

The sanctions for repeat violations are even more severe. Individual entrepreneur or the head of the organization will pay a fine of up to 30 thousand rubles, and the organization - up to 100 thousand. For the same violation, both the organization and its head can be brought to administrative responsibility.

The fine can be issued by the State Labor Inspectorate - GIT - based on the results scheduled inspection. The inspection schedule is posted on the agency's website. For example, here is a plan for Petersburg. An inspection may also be unscheduled, when a complaint is received from the employee against the employer.

It also happens like we do.

Once the prosecutor's office firmly set out to fine our organization for anything. Its employees daily came hand in hand with representatives of other departments and carried out inspections. On Monday, firefighters were brought in and studied fire extinguishers for a long time. On Tuesday - Roskomnadzor, on Wednesday - Rospotrebnadzor, then - Rosfinmonitoring. But no violations were found.

Then the prosecutor's office brought the GIT, and that's it - bingo! - they found slight delays in payment of wages and a violation in the employment contract: the date of payment of wages was indicated as an interval. As a result, the inspectorate issued a fine of 5,000 rubles for me as an official, and not for late payment of wages, but for an incorrectly drawn up employment contract.

If the decision had been issued to the organization, the amount of the fine would have been higher.

Criminal responsibility. If an organization does not pay salaries for more than 2 months, its head can be imprisoned for up to 3 years.

If the salary is paid partially, but less than half of the established amount, then after 3 months of delay the head may be held criminally liable. Then the maximum punishment is imprisonment for up to a year.

When non-payment of wages has led to serious consequences for the life or health of an employee, the maximum term of imprisonment is 5 years. For example, a person needed money for treatment, but there was none, because the employer did not pay wages. If because of this the employee died or became disabled, the head of the organization has a chance to end up in prison.

At the same time, there must be interest in the actions of the leader. For example, an enterprise has the opportunity to pay a salary, but the manager decides that the employees will wait and spends the money on other needs - payment for the services of contractors or their own bonus.

For example, Yury Ivanovich, the general director of the company, did not pay wages to his employee for more than 2 months. The worker waited patiently, and then quit. At the same time, the company had money - Yuri Ivanovich himself and other employees received their salaries on time.

The total debt of the organization to the employee amounted to 271,800 rubles. When a criminal case was opened against Yuri Ivanovich, he partially repaid the debt and fully admitted his guilt. The court took this into account and appointed him as a punishment not imprisonment, but a fine of 110 thousand rubles.

Such cases are investigated investigative committee. If the manager fully repays the debt to employees within 2 months from the date of initiation of the case, he will be released from criminal liability. But only if two conditions are met:

1. He had never committed such a crime before.
2. The delay in payment did not lead to serious consequences.

What should employees do if their wages are delayed?

Here's what an employee can do to get their money.

Suspend work. If a person is not paid a salary, he is not obliged to work for free. After 15 days of delay, he has the right to suspend work until he is fully paid.

This rule does not work automatically. The employee must notify the organization in writing of his intention to suspend work. After that, he may not appear at the workplace. Moreover, such a strike occurs at the expense of the employer: the employee sits at home, but he is still paid a salary based on average earnings.

There are exceptions. It is forbidden to suspend work:

1. civil servants.
2. Military.
3. Employees law enforcement and the Ministry of Emergency Situations.
4. People responsible for providing the population with gas, electricity, heating.
5. Ambulance staff.
6. People who work in hazardous industries and with hazardous equipment. For example, an engineer with nuclear power plant have to wait for a paycheck.

When the employer is ready to pay the employee the salary, he must send him a written notice. It can be sent by registered mail by mail or hand over personally under the signature. The employee must return to work the next business day after receiving such notice. If he does not come out, he will be put on absenteeism. And the employer must pay the employee in full on the day of exit.

Write complaints. There are three destinations:

1. State Labor Inspectorate. Upon receipt of the appeal, the inspectors will conduct an inspection. If the inspectors find violations, they will draw up a protocol and bring the employer to administrative responsibility.
2. Prosecutor's office. She organizes an inspection, collects documents confirming the violation, and transfers them to the State Inspectorate for bringing to administrative responsibility. If the inspectors find signs of a crime in the actions of the employer, they will send the materials to the investigative committee to initiate a criminal case.
3. Investigative committee. It makes sense to apply here if the salary is not paid for more than 2 months. Or when they give out less than half of the salary for 3 months. As a rule, after initiating a criminal case, the employer suddenly finds money to close the wage arrears.

Go to court. The employee has the right to file a claim with the court and recover from the organization wage arrears, compensation for delay and non-pecuniary damage. It's free - employees are exempted from paying state duty.

If the employee wins the court, then after the entry into force of the decision, he will receive a writ of execution. It must be taken to the bailiffs, who will initiate enforcement proceedings and will forcibly collect the debt from the organization.

Olga worked for an individual entrepreneur - she sold watches in a store. An employment contract was not signed with her, all the conditions were discussed in words. Once Olga fell ill and went on sick leave. The boss did not like this - the seller was fired remotely through correspondence on Vkontakte, and the salary was not paid. Olga went to court demanding to recover wage arrears and compensate her for moral harm.

If the employment contract was not drawn up in writing, it does not matter. It is still considered to be concluded when the employee has started work with the knowledge and consent of the employer. An individual entrepreneur provided Olga with a workplace and goods - watches - for sale. She constantly went to work and performed work duties.

The employer did not come to court and did not refute Olga's arguments in any way. The court decided that Olga was right and should receive unpaid wages and compensation for non-pecuniary damage.

Remember

1. If an organization delays the salary of an employee, it must pay compensation for the delay.
2. The minimum amount of compensation is 1/150 of the key rate of the Central Bank for each day of delay. If an increased compensation is indicated in the labor or collective agreement, internal labor regulations, you will have to pay more.
3. Even if the employer is not to blame for the delay, he is still obliged to pay compensation.
4. Compensation is calculated from the amount that the employee should have received in his hands.
5. Compensation for salary delay is not subject to personal income tax.
6. If the employer establishes increased compensation, he must prescribe its amount in the labor or collective agreement, internal labor regulations.
7. You can not pay insurance premiums from compensation if you are ready to prove your case in court.
8. If compensation for delay in expenses is taken into account when calculating income tax, tax office may be dissatisfied. Then you have to sue.
9. Pay compensation at the same time as delayed wages.
10. For non-payment of wages, the employer faces administrative or criminal liability.