The difficult economic situation, the slowdown in production and problems with the sale of manufactured products is the main reason for the non-receipt of funds in the budget of the organization. Often a person, whether an employee or a worker, may be faced with a situation where the employer delays or does not pay salaries, scholarships and other payments. It is necessary to figure out what to do in such a situation and whether it is possible to receive compensation for infringement of a citizen’s right to pay.
What is compensation for late payment of wages
When hiring, professional relations between the subordinate and the employer are formalized using an employment contract. Here, the obligation to timely pay remuneration for the work done is clearly fixed. In a broad sense, wages are a monetary or material reward for labor that the employer is obligated to pay the employee for the amount of work performed. The amount of remuneration directly depends on the quantity, complexity, quality and working conditions, as well as the qualifications of the employee.
In addition to the basic salary, the concept of “salary” includes bonuses, vacation pay and other types of remuneration provided for in a collective agreement. If the employer does not comply with the terms of payment of salaries, according to the law, he is responsible for this. Compensation for non-payment of wages is due from the first day of non-payment. For non-compliance with labor laws, an employee has the right to demand:
- cash compensation;
- board indexing;
- application of penalties to the head and chief accountant;
- compensation for moral damage;
- in addition, the employee has the right to suspend the performance of his duties.
Initially, the employee turns to the head of the enterprise, but if the issue cannot be resolved for a long time, you can proceed with active actions:
- Write a notice of termination of employment if the delay lasts more than 15 calendar days. In this case, it is allowed not to go to work until a person receives an official confirmation of the management's intention to pay him the amount due. Civil servants, employees of paramilitary units, workers in the sphere of life support of the population and especially dangerous industries cannot do this.
- Contact the prosecutor's office or the State Labor Inspectorate in Moscow or any city where a person lives.
- Make a statement of claim to the judicial authorities with a request to force the administration to pay salaries and compensation.
It should be noted separately that if an employee pays alimony, and does it on his own, and not by automatically withholding part of his salary, then in case of delay by the employer of paying wine for non-payment of alimony to the payer is not assigned. He is not obligated to pay a penalty and recover damages.
The main document for every Russian, which not only gives the right to work, but also to remuneration for the work done, is the Constitution. With regard to the duties of officials who are employers and the rights of employees themselves, they are detailed in legislative acts such as:
- Labor Code;
- Tax code;
- Code of Administrative Offenses;
- Criminal Code;
- Civil Code;
- Law No. 272-FZ of July 3, 2016, "On Amending Certain Legislative Acts of the Russian Federation on Increasing the Liability of Employers for Violating the Legislation Concerning Salaries".
Terms of payment of wages according to the Labor Code of the Russian Federation
The Labor Code stipulates that the employing organization is obliged to pay wages to its subordinates at least twice a month. The exact dates on which payments are made will be determined individually in the organization and must be documented in local regulatory acts. They should not contradict the current legislation, which reflects the main features of accruals:
- Salary is paid no later than 15 days from the end of the period for which it is accrued.
- The advance payment is paid no later than the last day of the month worked.
- Payment for work performed is carried out at least once every 15 days.
- Transfer of vacation pay must be made at least 3 days before the start of the vacation.
- Full settlement upon dismissal or termination of the contract falls on the day of dismissal.
- If the payment falls on a weekend or holiday, the calculation is made on the day preceding this date.
The employer has the right to change the dates of payment of funds for the work performed, if this does not contradict the current Russian legislation. Moreover, he is obliged to notify his subordinates, and in some cases, to coordinate the number with the employee (if the date is specified, for example, in the Employment Contract). In addition, the day of payment of salaries can be postponed at the initiative of the citizen himself, if this does not go against the legislative and regulatory acts and the employer does not mind.
In what cases is the employer's responsibility
One of the basic rights that an employee has is the right to timely and full remuneration of labor - this is stated by the Labor Code of the Russian Federation. According to this document, the employer must pay for the work carried out by the person, regardless of the circumstances. Labor inspectorates are entitled to conduct unscheduled inspections of enterprises if complaints have been received from workers. Since the employer has certain deadlines for the payment of wages, in case of violation of his duties he is responsible for this. It occurs in several cases:
- The manager, who has the opportunity to pay remuneration for the work done to his subordinates, does not do this, but directs the available funds for other purposes, for example, the purchase of new equipment or the repair of the building.
- Calculation is not made for more than 2 months or more. This situation refers to the complete non-payment of salaries. This could lead to criminal liability, as well as the use of money owed to pay earnings for personal purposes.
- Partial settlement within three months in the amount of less than half of the allocated funds. This can also be fraught with criminal liability.
How to calculate compensation for delayed salaries
Non-payment of wages often arises for a number of reasons, for example, due to the lack of financial resources of the enterprise, illness of a responsible employee, etc. According to the law, the employer has no right to delay the payment of earnings, and if it is impossible to compensate for damage on non-payment on the same day when It is planned to issue money. Compensation is charged from the first day of delay, and provided that the employer does not pay earnings for more than 2 weeks, you can completely stop working.
The calculation of compensation for delayed payment of wages includes several indicators:
- Salary of a citizen who was delayed payments for the work done. When calculating the amount is taken less personal income tax. In case of a partial delay, compensation is calculated based on the unpaid amount of cash.
- Coefficient for calculation. By default, it is equal to 1/150 of the key rate of the Central Bank, but each organization or enterprise has the right to set its own indicator, which should not be less than established by law.
- The number of days of non-payment. The countdown is from the date that falls on the day following the day the salary is paid according to the schedule.
In order to understand the question of what compensation is due for violation of the terms of payment of wages, it is necessary to substitute the initial data in a special formula:
RZ * K * KD, where:
- RZ - the amount of debt of the enterprise to the person. It is indicated in rubles.
- K - Coefficient. The basis is 1/150 of the Central Bank key rate. Until October 3, 2016, another indicator was used - 1/300 of the Central Bank CS. For calculation, the Bank of Russia key rate is used, which is valid on a specific date (since December 18, 2017, it has been 7.75%)
- KD - the number of days during which the payment of due earnings does not occur.
Interest on delayed wages
According to labor law, the amount to be compensated is calculated by the employer for each day of delay in payment of wages. Paid simultaneously with interest and the entire amount owed. The amount of compensation depends not only on the amount of debt, but also on the ratio used.
Each organization may use its own ratio to calculate interest on debt recovery. It should not be less than the size established by law. As of January 1, 2019, it is 0.05% / day (7.75% / 150 = 0.05%). The size accepted at the enterprise is prescribed in local regulatory legal acts and is binding, but may be revised.
In a particular region, an increased compensation coefficient for non-payment of salaries may be established. The local executive power can establish a new size only after coordination of this issue with representatives of enterprises and trade unions. After the publication of the order, the head of any enterprise may within one month provide a reasoned refusal in writing. Otherwise, the absence of an answer will mean acceptance of the decision.
Summing up the intermediate result, several important factors should be noted:
- Compensation for delayed wages is not lower than the level established by law equal to 1/150 of the Bank of Russia key rate (which is valid on the date of payment of the debt) per day of the amount owed.
- At the regional level or in a single enterprise, the employer can independently determine the amount of compensation, but provided that they are not lower than the statutory amount. This fact is reflected in local regulations and acts within the framework of an individual entity or enterprise.
For ease of understanding, you can consider 2 small examples:
- According to the internal rules of the enterprise, wages are credited on January 8th. Due to certain circumstances, there was a delay in issuing money and the payment will be provided on the 12th. The first day of non-payment will be considered the 9th day. Then the total number of days will be 4 (9.01, 10.01, 11.01, 12.01). The total amount of debt - 3 000 p. Today, the key rate is 7.75. Based on the data, compensation for late payment of wages will be 6 p. 20 K.
- According to the collective agreement for each day of delay in wages, the employer agrees to pay the employee compensation in the amount of 0.07% of the amount owed per day. In December, the wage day was on the 18th, but the employer delayed payments and paid only 21. The number of days of delay was 3 (19.12, 20.12, 21.12). The amount payable was 7500. By the calculation method, it turns out that the employer is obligated to pay 15 p. Over the amount due. 75 K. (7500 * 0.07% * 3 = 15.75)
In connection with the automation of production processes, you rarely see organizations where wages are calculated by calculating on a calculator. The above formula is intended for a simple layman to approximately calculate the amount for which he is entitled to count if the employer has delayed payments to him. In addition to the existing formula, you can refer to special online calculators, which will also assist in the calculation.
The principle of their action is simple, and for the calculations, a minimum of data is required:
- debt start date;
- date of calculation of compensation;
- amount of debt.
On some sites, you can use additional options:
- Settle partial debt.
- Carry out the calculations by adding the existing debt and the newly formed.
- Download existing data from spreadsheet editors such as Excel.
- Print the received form.
Payment of personal income tax and insurance premiums from the amount of compensation
When calculating compensation for untimely paid salaries, many are interested in whether it is necessary to pay the due contributions from the accrued amount. This issue is explained in the letter of the Ministry of Finance No. 03-04-05 / 1196 of February 28, 2017. According to it, the employee receives the full amount of accrued compensation. In this case, there is no need to pay personal income tax.
When the penalty for delayed salaries is greater than what is required by law, and this is reflected in the legal acts of the organization, you will not have to pay a tax either. But if there is no such amendment, it follows from the difference between the legislatively established amount (which is calculated based on the size of the key rate) and the accrued amount to pay income tax.
As for insurance payments with compensation money, there is no clear settlement. If we turn to the legislation, we can conclude that there is no need to pay insurance premiums, but representatives of regulatory bodies adhere to a strictly opposite point of view. The practice of the courts is also not indicative, because the decisions made do not have a clear justification, although most of them indicate the need to pay contributions.
Employer Administrative Responsibility
Under the law, each employee has a guaranteed right to receive timely payment for his work. The exact date of the transfer of funds is determined by local regulations, but cannot occur less than twice a month. According to these documents, liability for non-payment of salaries is also provided for at the same time. Sanctions apply both to the whole enterprise, and to individual executives, for example, to the general director or chief accountant.
Holding liable is carried out even with a single violation of the order and terms of payment of money earned by staff. Administrative liability, as well as criminal liability, occurs in case of systematic violations. According to the Code of Administrative Offenses, the punishment will be followed with a full or partial delay or non-payment of salaries. Administrative responsibility for the improper performance of their duties is expressed as:
- Pecuniary punishment, which is carried out by imposing a fine.
- Disciplinary punishment, up to dismissal and subsequent opportunity to occupy leadership positions for one year.
The Labor Code of Russia states that each person shall be disciplined for failure to perform and improper performance of his official duties if the incident occurred due to his own fault or negligence. Non-payment or delay in salary is considered as improper performance of duties by the organization’s management.According to article 192 of the Labor Code of the Russian Federation, disciplinary responsibility is imposed on them, which can be expressed as:
The Administrative Code indicates that, in addition to paying the employee compensation for each day of delay and the salary itself, penalties are additionally levied from the employer. This money is not sent to the employee, but directly to the state treasury. The size of the penalty varies depending on the status of the employer and the frequency of violations:
Amount of fine, rubles
Organization / Enterprise
Individual entrepreneur with hired staff
In case of repeated violation:
Amount of fine, rubles
Organization / Enterprise
Individual entrepreneur with hired staff
Liability of officials to the owner
Violation of the terms of payment of salaries may result in liability. The owner of an enterprise or organization may recover from the offender the amount of damage caused to him. As a rule, it is levied on officials who have delayed. The loss is the money that the employer needs to find to pay off the debt to the employee, because in addition to compensating the victim for non-payment of wages, the employee can insist on:
- Compensation for moral damage.
- Indexation of the amount of debt to the percentage of inflation.
- Compensation for lost earnings due to suspension of work.
Criminal liability of officials
The current legislation provides for criminal penalties for delayed or non-payment of wages arising as a result of personal interest or selfish acts of the head of the organization or its owner. If the salary is not paid within 2 months or is partially paid (less than half of the amount due) for 3 months, it entails:
- A fine of 120 thousand rubles or in the amount of earnings for a period of up to 1 year.
- Deprivation of the right to work in certain positions for up to 5 years.
- Imprisonment of up to 2 years.
For grave consequences, the list of punishments becomes more severe:
- A fine of 300 to 500 thousand or in the amount of earnings for a period of up to 3 years.
- Imprisonment from 3 to 7 years with deprivation (or without) of the opportunity to be employed in certain positions for up to 3 years.