Due to wage arrears. There are no good reasons for delaying wages

What to do if wages are delayed and where to complain? As indicated by the Labor Code, each employee has the right to receive wages twice a month. Toward the end of the month, as a rule, they give out an advance, and at the beginning of the next - the rest of the salary. The exact dates of payments are set at each enterprise separately and are prescribed in the conditions of the internal labor schedule, if this date falls on a day off, accruals must be made the day before. If a person did not receive a salary exactly on time, this can already be considered a violation of his rights, even a day's delay is taken into account. In this case, the employee is entitled to monetary compensation. Today we will talk about what needs to be done if the employer delays wages and how to correctly write a claim for delay in wages.

If wages are delayed for a long time, according to the law, this may be considered a 15-day period, the employee has the legal right to refuse to perform his duties. However, representatives of some professions do not have such a right by law to leave the workplace even after a 15-day period, this applies to civil servants, employees of state formations, workers in the life support sector, representatives of enterprises engaged in hazardous production.

Gross violations of the Labor Code of the Russian Federation threaten the employer with administrative and even criminal penalties. The issue is resolved with the help of the labor inspectorate, the prosecutor's office and the judiciary.

How to get compensation without scandal

If the salary was delayed for a short period the employee is entitled to claim compensation. Its size for each day must be at least one three hundredth of the refinancing rate in force during the period of delays in the Central Bank. As of July 23, 2016, the rate was 11 percent. Every day of delay is counted. That is, the amount of compensation is determined from the total amount of debt, to which is added another three hundredth of 11 percent for each day.

The employee's right to compensation is spelled out in the Labor Code. Companies with a good reputation always take this into account and, in the event of a delay, add the due amount to the salary. But more often people are faced with the opposite: either the employer does not know the laws well, or, and this is most likely, does not want to pay more. At the first stage, they try to resolve the problem within the enterprise. In the event of a delay and complaint from at least one person, a labor dispute commission is created, which includes representatives of the work team and the employer, the participants must be equally divided from each side. The employee’s application is registered, after which the dispute must be settled within ten days: either the employee is immediately paid the delayed salary, or, if the decision is not met, they issue a certificate, but in fact a writ of execution, which must be taken to the bailiffs.

In addition to monetary compensation, an employee can also demand:

indexation of wages, if we are talking about constant delays for a long time and the general depreciation of money over this period;
compensation for non-pecuniary damage (only through the court).

What to do if the salary is delayed for half a month?

With a long salary delay the worker, unless he is one of those to whom this form of strike is prohibited, has the right not to go to work. Prior to this, he must notify his employer in writing. If the latter notifies that he is ready to pay for the work performed, as soon as the person returns to his work duties, the employee will need to come to work the very next day after receiving such a notice.

What to do if the problem cannot be solved within the team

Relations within the team can be very different, and it is not always possible for a person to achieve understanding from other employees or, even if there is an understanding of colleagues, to resolve the conflict with the employer through the labor commission. Therefore, you can safely apply to government agencies. Next, we will analyze where can I complain if the employer delays wages.

We contact the labor inspectorate

An appeal to the labor inspectorate or its regional branch is considered within a month. A written complaint can be submitted directly or sent by registered mail (to receive notification of receipt), today in many regions it is also possible to submit a complaint via the Internet. It is advisable to attach a copy of the employment contract and any written evidence proving the delay in payments to the complaint.

If the inspection considers the arguments fair, the specialists will send the employer an order with instructions to pay off their debt to the employee, taking into account the accumulated interest.

Do not forget to indicate in your complaint your return address, telephone number, as well as the amount of the debt and the number of days of salary delay.

This option can be considered the most convenient and most effective, since it is the labor inspectorate that deals with the issues of delayed wages and violation of the rights of workers. In addition, the inspection staff, if necessary, should help with the preparation of an application to the judicial authorities, and during the proceedings confirm the validity of the plaintiff's claims.

We contact the prosecutor's office

You can also contact the prosecutor's office by filing a complaint in writing (you can also take the application to the office or send it by registered mail). A prosecutor's check may reveal other violations, after which sanctions will be imposed on the employer.

Contact the district court

The case can go to court not only after inspections by the labor inspectorate or the prosecutor's office, although their support will not be superfluous for the employee, but also on the personal initiative of the citizen. You should apply to the court at the place of registration of the employer's enterprise.

In order for the decision to be positive, it is necessary to attach a maximum of documents and evidence of the unfair attitude of the employer to the claim:

original employment contract;
application for non-payment;
a copy of the work book;
a copy of the employment order;
certificate from the accounting department on income;
bank statements (relevant if the salary is credited to the card);
copies of pay slips;
calculation of debt (according to the version of the accounting department and according to its own version);
testimony of witnesses.

Appealing to the Supreme Court

If the salary was accrued, but it did not reach the employee, you can apply to the justice of the peace with a request to issue a court order, that is, an executive document, according to which the plaintiff will be required to issue an unpaid salary. The order is issued within 5 days after the request.

How to write a claim

How to write a claim for delayed wages? The issue of non-issuance of part of the money may be relevant not only in case of delays, it often arises when an employee quits and wants to receive compensation due to him for a vacation that he did not use. In this case, the claim is written in the name of the head and may look something like this:

Director of Taxi LLC

Ivanov Ivan Ivanovich

from Petrov Petr Petrovich,

(specify position)

Claim

I, Petrov Petr Petrovich, worked at Taxi LLC from 01/01/2015 to 07/23/2016 as a driver, which confirms the employment contract concluded between me, Petrov Petr Petrovich, and the director of Taxi LLC Ivanov Ivan Ivanovich, as well as entry in the work book dated 01/01/2015.

I performed my duties responsibly, however, for the period from 06/01/2016 to 07/23/2016 I was not paid, which indicates a violation of Article 22 of the Labor Code of the Russian Federation.

On the basis of Order No. 43478 dated July 23, 2016, I was fired under Article 80 of the Labor Code of the Russian Federation.

The amount of unpaid wages to me at Taxi LLC amounted to: for June 2016 - 18 thousand rubles, for July 2016 - 14 thousand rubles, and in total - 32 thousand rubles.

Based on Article 114 of the Labor Code, every employee has the right to annual paid leave, but I did not use this right this year and did not receive compensation for this, the debt is 14 thousand rubles.

Employers who delay the payment of wages to their subordinates are liable before the law on the basis of Article 143 of the Civil Code of the Russian Federation. I believe that the management of Taxi LLC violates and does not comply with the laws.

Based on this, I require:

To give me a salary in the amount of 32 thousand, funds for the vacation that I did not use in the amount of 14 thousand, and also to reimburse the expenses that I spent on the services of a lawyer in the amount of 5 thousand rubles, and in total to pay 51 thousand rubles.

Please send your answer to the following address: Vladimir, Levitan street (we indicate the exact address).

In case of incomplete satisfaction of all my legal requirements, and even more so in case of refusal, I will have to contact the Labor Inspectorate for the city of Vladimir, the prosecutor's office, and also file a lawsuit in court. I will additionally demand compensation for material damage and compensation for non-pecuniary damage. You will also be responsible for all of my legal costs.

08/01/2016 Signature

What is the responsibility of the employer

For violation of the Labor Code, employers are usually held administratively liable. In case of delays in payments, they may face the following penalties:

up to five thousand rubles for officials;
up to five thousand rubles or suspension of activities for 90 days for individual entrepreneurs;
for legal entities, fines can reach up to fifty thousand rubles, they can also be banned from operating for 90 days.

In special cases, the amount of fines can be increased up to 500 thousand rubles.

Employers can also expect criminal penalties with heavy fines (up to half a million), a three-year prison term and deprivation of the right to hold certain positions during the same period. This is the case if they do not pay their wages in full for at least two months. If, for at least three months, the employer pays part of the salary, but less than half, he can be fined only 120 thousand rubles and imprisoned for one year. But it is rather difficult to bring to justice those persons who for a long period of time pay their employees more than half of the monthly salary.

If the salary is issued according to the sulfuric or black scheme, it will be much more difficult to prove the fact of non-payment in the authorities, so try to immediately agree with the employer that all payments will be made officially.

If several people are experiencing delays at work, it is best to work together. Collective applications in all bodies are considered faster and often lead to positive results.

If there is a delay in wages, an employee of the organization can file a complaint:

Labour Inspectorate
Prosecutor's office

The labor inspectorate protects workers from illegal actions of the authorities. Employees of this organization help in solving the problem with the timing of wages. The labor inspectorate, after receiving a petition from the disadvantaged employee (group of employees), checks the specified enterprise.

The prosecutor's office considers the application of the workers, and by checking the institution and its head, in particular, makes a decision to impose penalties on the head of the enterprise.

Employees of a non-executing organization can file a lawsuit. To satisfy it, it is necessary to provide the court with the maximum amount of evidence about the violation.

Application for non-payment of wages to the prosecutor's office

The petition is written in free form from one or more employees. The maximum number of employees that can appear in a collective statement is not prescribed by law.

The application must include certain points:

Company details
Information about the leader
Information about each applicant

The essence of the claim should be stated briefly, but fully.

Complaint to the labor inspectorate about salary delay for 2 months or more

A complaint to the labor inspectorate is written in the same way as the one described in the previous paragraph.
This document can be sent by e-mail, registered mail or personally submitted to the inspection. Directly in the inspection itself, you can see a sample complaint for its execution.

If an employee of the organization does not want the author of the petition to be disclosed during the audit, a non-disclosure clause can be indicated in the text of the complaint.

In case of delay in payment for labor activity, employees can apply to special authorities for proceedings. However, one should not forget about the human factor and the possibility of solving the problem peacefully, through conversation.

What can an employee do?

The employee(s) who are delayed in the payment of their wages have every right to demand payment of the money earned to them, together with interest.

By the way, the employee, if desired, can calculate the amount of compensation for delayed wages independently using the following formula:

Compensation for wages = current debt * 1/300 refinancing rate or 14% * number of days of delay.

In addition, the personnel of the enterprise may require:

wage indexation due to inflation;
demand compensation for non-pecuniary damage. Moral damages may be paid in the amount determined by agreement between the director and the employee. However, if the employer refuses to issue such an amount, moral compensation can be claimed only through the court;
suspension of work, provided that the salary has not been accrued for more than 15 days, however, the employer must be notified of such suspension in writing;
require the competent authorities to impose a fine on the head of the enterprise for the delay in payments.

If salary delay is more than 15 days

The countdown of the days of delay in wages should be considered from the day following the date of payment of wages, fixed in the local acts of the organization. The employee must be familiarized without fail with these acts, but if the employee does not know what terms are set in the organization for remuneration, then the employer should contact the employer with a request to familiarize the employee with the relevant documents. The terms of payment of wages can be prescribed in the collective agreement, labor regulations, labor contract with the employee.

If 15 days have passed and the employee's wages have not been paid, he has every right not to go to work, starting from the next day. Article 142 of the Labor Code of the Russian Federation gives him such a right.

The main condition that must be met in this case is a written notification of the employee about his intention to stop the work process. The employee should write an application for the suspension of work due to a salary delay of more than 15 days. The application must be made in two copies.

One is handed over to the employee, the second with the organization's visa on acceptance of the application should be kept for yourself. This will be proof that the employee has notified management of the termination of work, in which case the absence of the employee from the workplace will not be defined as absenteeism.

If the employer does not want to accept the employee's application, the office does not want to put a stamp on the acceptance of the document, then you need to send a notification by mail with a description of the attachment and a return receipt.

The employee is obliged to return to work as soon as he receives written confirmation from the management of the company that the payment of wages is planned. Also, the employee is obliged to go to work as soon as he receives the money due to him.

The right of an employee to be present at work if the salary is delayed for more than 15 days or not to go to the workplace at all.

Before writing an application and stopping work, you need to make sure that the employee’s position does not apply to the exceptions established by Article 142 of the Labor Code of the Russian Federation, for which work stoppage is not allowed.

Which employees cannot stop work if their salary is delayed for more than 15 days:

military personnel;
working in law enforcement agencies;
firefighters;
working in rescue services, emergency services;
providing the population with water supply, heating, electricity, communications;
working in an ambulance;
civil servants;
working in production with especially dangerous conditions;
when a state of emergency or martial law is declared.

Where to complain if the salary is delayed by the employer?

An employee can not only not go to work in anticipation of his money, but also take certain actions aimed at receiving his due salary. An employee can complain to various authorities and institutions.

Labor Inspectorate

The first place an employee should contact when wages are delayed is the Federal Labor Inspectorate. You can complain from the first day of the delay.

The employee should write a written statement stating the fact of salary delay, after which the application with supporting documents is submitted to the labor inspectorate, which will check the employee's statements and, if the employer is found guilty, will impose a fine on the organization. A penalty of suspension of activities for up to 90 days may also be applied.

The application should be accompanied by documents that confirm that the employee really works in this organization (employment contract). You should also provide a document on the amount of wages due to the employee for his work, documents establishing the terms for paying wages.

Prosecutor's office

An employee can complain to the prosecutor's office if the salary delay has exceeded 2 months. You need to complain at the location of the organization. A statement is drawn up, on the basis of which the prosecutor's office conducts its investigation.

Court

Another institution where an employee can go to delay wages is the court. In this case, a statement of claim is drawn up, to which the documents listed above are attached.

Is salary delay allowed under the labor code, and for how long

A little higher, we told you what to do if you do not pay a salary. However, sometimes the economic situation in the country or other force majeure circumstances can make certain adjustments, as a result of which delays in payments to employees occur for reasons beyond the control of the employer. Let's figure out what to do and where to turn if your salary is delayed?

How long is wage delay allowed? Let's look at the law again: Art. 136 of the Labor Code of the Russian Federation states that the employer is obliged to pay wages at least twice a month on the days established by the internal labor regulations.

Any violation of the deadlines (even if it is 1 day), regardless of the reasons, is considered unacceptable and may entail liability with the subsequent application of certain sanctions against the employer. Of course, it is unlikely that any of the employees will apply to the regulatory authorities in the event of a one-day delay in wages, but from a legislative point of view, this is possible and acceptable. The law is on the side of the worker. Delay or non-payment of wages is prohibited. Otherwise, the employer will rightfully be held liable. There are no allowable delays.

How can an employee protect their rights?

In case of violation of the rights of employees to receive wages, employees have the right to apply to the commission on labor disputes.

An application submitted to the CCC must be registered with this body and may be considered within 10 days after the complaint is filed.

In the event that the CCC satisfies the complaint of the subordinate, this decision must be complied with by the employer.

Also, working citizens have the authority to file a complaint with the labor inspectorate. In his application, the employee must indicate the following information:

Name and address of the employee;
Name of the employer and address of the enterprise;
The text of the complaint itself indicates: for how long the salary was not paid, the final amount of the debt, and other circumstances relevant to the case.

It is also advised to attach to the application a copy of your employment contract, other evidence that confirms the fact that the salary was not actually paid. The complaint may be filed in person or through a representative, or it may be sent by certified mail with acknowledgment of receipt.

The terms for consideration of the complaint and the labor inspection are 30 days from the date of its receipt. If the fact that the salary is delayed at the enterprise is established, then the manager will be given an order on the need to pay wages, taking into account interest. The Labor Inspectorate oversees the implementation of this regulation.

You can also file a lawsuit demanding payment of wage arrears in the district court. A copy of the employment agreement, work book, as well as documents confirming the delay in salary (bank statements, pay slip) must be attached to the claim.

If you were accrued wages, but were not paid, then you can apply to the justice of the peace with a request for a court order. This document is equivalent to a writ of execution. The magistrate issues an order within 5 days after the employee's request.

You can challenge the order within 10 days after its issuance. On the basis of a court order, it is possible to recover both the amount of wage debt and the interest accrued over this period.

Responsibility of the head for non-payment of salary

If the management of the enterprise violates the terms of salary payment, then for each day of delay the payment of interest is also established.

This rule is specified in Art. 236 of the Labor Code of the Russian Federation, the interest rate is set at 1/3000 of the current refinancing rate of the Central Bank of the Russian Federation, and it is calculated for each day of delay.

At the same time, such a rate can be set at a higher rate in a collective agreement or a local act of the enterprise.

The first day of delay is the next day after the occurrence of the due date for the payment of salaries to staff. The last pay date for wage arrears is the due date for the payment of wages.

After all personal income tax deductions have been made, all due payments are transferred to employees. The director of the enterprise cannot refuse to pay wages because the employee has been reprimanded or there are some other shortcomings in his work.

Right to suspend work

In Art. 142 of the Labor Code establishes the right of citizens to suspend work in cases where the boss has delayed wages for more than 15 days. However, such an event can only be carried out after a written notice from the employer.

For example, an employee may ask the boss to sign a second copy stating that he received a notice of suspension of work due to delayed payments.

If the manager refuses to sign such a notification from the staff, the document can be sent via mail.

However, the letter should be sent with acknowledgment of receipt. After the manager receives this letter, the employee (s) have the right to suspend work. Note that the suspension time is paid based on the average salary of the employee.

During the suspension of work for such a reason, employees are allowed not to be at their workplace. But in the event that employees receive from the employer about his readiness to pay off the debt, they undertake to return to work no later than the next day after receiving such notification. Moreover, the management is obliged to repay the wage arrears, taking into account interest for the delay.

Some employees do not have the right to suspend work, this includes the following categories of employees:

an employee of the structures of the Armed Forces and other paramilitary formations that deal with the defense of the Russian Federation, as well as carry out firefighting, search and rescue operations, and activities to eliminate emergencies and natural disasters;
law enforcement officers;
employees of enterprises that service hazardous equipment or hazardous industries;
civil servants;
workers who are employed in enterprises of energy supply, heat and water supply, ambulance and emergency medical care, communications, energy supply.

It is not allowed to announce the suspension of work during a state of emergency or martial law.

List of sources

kadromir.ru
www.PapaJurist.ru
trudinsp.ru
www.samso.ru

In order to increase the interest of employers in preventing violations of the labor rights of employees, in the draft federal law No. 473887-7 “On Amending Article 5.27 of the Code of the Russian Federation on Administrative Offenses”, submitted to the State Duma on 05/25/2018, it was proposed to exclude from part 6 of the named article punishment in the form of a warning. If the bill is passed, the employer will no longer be able to get off with a warning for non-compliance with the terms of salary payment and will have to pay a fine. You will learn about the consequences for the employer of late payment of wages from this article.

The Ministry of Labor in Letter No. 14-1 / OOG-4375 of May 24, 2018 recalled that, according to par. 5 hours 1 art. 21 of the Labor Code of the Russian Federation, an employee has the right to timely and full payment of wages in accordance with his qualifications, complexity of work, quantity and quality of work performed. In turn, the employer is obliged to pay in full the wages due to employees within the time limits established in accordance with the Labor Code of the Russian Federation, the collective agreement, internal labor regulations, labor contracts (paragraph 7, part 2, article 22 of the Labor Code of the Russian Federation).

Part 6 of Art. 136 of the Labor Code of the Russian Federation, it is established that it is paid at least every half a month. The specific date for the payment of wages is fixed in the internal labor regulations, collective or labor contract no later than 15 calendar days from the end of the period for which it is accrued. In Letter No. 14-2/B-761 dated August 18, 2017, the Ministry of Labor noted that the right of an employee to receive wages at least every half a month is one of the conditions established by law, and this condition cannot be worsened either by agreement of the parties, or on the basis of a collective agreement.

Note:

The Labor Code does not regulate specific terms for the payment of wages (does not provide for specific dates of the calendar month), but at the same time establishes requirements for the payment of wages at least every half a month, as well as the maximum allowable period of time after the end of the worked period, in which part of the salary for this period.

The specific date for the payment of wages is established by the internal labor regulations, collective or labor contract no later than 15 calendar days from the end of the period for which it is accrued.

Note:

When paying wages for the second half of the month, the employee must be given a payslip in the form approved by the order of the head of the organization (part 1 of article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated December 24, 2007 No. 5277-6-1).

The employer or representatives duly authorized by him, who have delayed the payment of wages to employees and other violations of wages, are liable in accordance with the Labor Code of the Russian Federation and other federal laws (part 1 of article 142 of the Labor Code of the Russian Federation). So, due to the delay in the payment of wages, the employer is threatened with attracting:

to material liability, which implies the payment of compensation to the employee;

to administrative and criminal liability.

In addition, upon receipt by the state labor inspectorate of a message about a delay in the payment of wages, it is possible to conduct an unscheduled inspection of the organization (paragraph “b”, paragraph 10 of the Regulation on Supervision in the Sphere of Labor).

Let's take a closer look at the liability process.

Payment of compensation for delayed payment of wages

According to Art. 236 of the Labor Code of the Russian Federation in case of violation of the established terms for the payment of wages, vacation pay and (or) other amounts due to the employee, the employer is obliged to pay them with interest (monetary compensation). At the same time, the obligation to pay compensation does not depend on the presence of his guilt.

Note:

Compensation under Art. 236 of the Labor Code of the Russian Federation, the employer must pay the employee for delaying the payment of wages even for one day.

The amount of monetary compensation cannot be less than 1/150 of the key rate of the Central Bank of the Russian Federation in force during the period of delay on the amounts not paid on time for each day of delay, starting from the next day after the established payment deadline and ending with the day of actual settlement inclusive. In case of incomplete payment of wages and (or) other amounts due to the employee on time, the amount of compensation is calculated based on the amounts actually not paid on time.

Note:

The amount of monetary compensation may be increased by virtue of collective, employment contracts or local regulations.

Compensation is calculated according to the following formula (based on the key rate of the Central Bank of the Russian Federation, if the employer has not set an increased amount of compensation):

Example.

In accordance with the local regulations of the organization, the salary for the second half of the month must be paid on the 10th of the next month. In fact, the salary for the second half of September 2018 in the amount of 30,000 rubles. was paid on 10/18/2018.

We will calculate compensation for the delay in the payment of wages. Local acts of the organization do not provide for an increased amount of compensation.

The number of days of delay was 8.

The key rate of the Central Bank of the Russian Federation is 7.5% (effective from September 17, 2018 in accordance with the Information of the Central Bank of the Russian Federation of September 14, 2018).

Therefore, the compensation payable to the employee will be equal to 120 rubles. (30,000 rubles x 7.5% / 150 x 8 days).

Reflection of compensation in accounting. Since compensation for delayed payment of wages is the liability of the employer, it can be qualified as a sanction for violation of the employer's contractual obligations to employees. For accounting purposes, such compensation is included in other expenses and is recognized on the date of its accrual (clauses 4, 11, 16 of PBU 10/99 "Expenses of the organization").

The amount of compensation is subject to reflection on account 73 "Settlements with personnel for other operations". Assuming that the amount of compensation is taken into account as part of other expenses, the following entries should be made in accounting:

Debit Credit - compensation for delayed payment of wages has been accrued;

Debit Credit () - workers' compensation paid.

Note:

The Order of the Ministry of Agriculture of the Russian Federation dated 06.06.2003 No. 792 “On Approval of Methodological Recommendations for Accounting Production Costs and Calculating the Cost of Products (Works, Services) in Agricultural Organizations” states that the amount of compensation for late payment of wages should be reflected under the item “Payment labor." In this case, the compensation is included in the cost of ordinary activities on the date the compensation is calculated on the basis of clauses 5, 16 of PBU 10/99.

Taxation of personal income tax compensation and insurance premiums. Compensation for the delay in the issuance of wages is not subject to personal income tax. This follows from the provisions of paragraph 3 of Art. 217 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of the Russian Federation of February 28, 2017 No. 03-04-05 / 11096, of January 23, 2013 No. 03-04-05 / 4-54, of April 18, 2012 No. 03-04-05 / 9-526, Federal Tax Service of the Russian Federation dated 04.06.2013 No. ED-4-3 / 10209). Recall that according to the above paragraph, all types of compensation payments established by the current legislation of the Russian Federation (within the limits provided for in accordance with the legislation of the Russian Federation) related to the performance of labor duties by the taxpayer are not subject to taxation (exempted from taxation).

Note:

If the payment of compensation for the delay in the payment of wages is set in a high amount and is made regularly by the regulatory local act of the organization, it can be recognized as an integral part of the salary, and the organization can be accused of using the scheme in order to minimize tax liabilities.

For example, in the Decree of the FAS UO dated November 30, 2012 No. Ф09-11655/12, the court found that:

compensation payments were of a regular systematic nature, and their size significantly exceeded the amount of accrued wages;

analysis of cash flow for each month indicates that the company has the opportunity to pay wages on time;

the amount of funds allocated by the company on a monthly basis to pay wages is, as a rule, lower than the amount of compensation paid in the same month.

In view of these circumstances, it was concluded that under the guise of compensation for the delay in the payment of wages, wages were paid to employees. In this regard, the court found it lawful to withhold personal income tax from the entire amount of compensation, and not just in part of the increased amount.

As for insurance premiums, the amounts not subject to taxation are listed in Art. 422 of the Tax Code of the Russian Federation. The payment associated with the delay in the issuance of wages is not mentioned in the specified norm, therefore, it will be subject to insurance premiums in the general manner. This is the official position of the Ministry of Finance, set out in Letter No. 03-15-06/16239 dated March 21, 2017.

It should be noted that during the period of validity of the Federal Law of July 24, 2009 No. 212-FZ "On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund" there were decisions in favor of organizations that did not tax insurance premiums specified type of payment. Thus, in Resolution No. 13AP-11744/2017 dated June 20, 2017, the Thirteenth Arbitration Court of Appeal recognized that the amounts of monetary compensation are not subject to inclusion in the base for calculating insurance premiums. Cash compensation (interest) for the delay in the payment of wages, provided for in Art. 236 of the Labor Code of the Russian Federation, is a type of liability of the employer to the employee, is paid by virtue of the law to an individual in connection with the performance of his labor duties, providing additional protection of the labor rights of the employee. The amount of monetary compensation paid to an employee may be increased by a collective or labor agreement. The obligation to pay the specified compensation arises regardless of the fault of the employer.

The amount of assessed contributions is included in tax expenses (letters of the Ministry of Finance of the Russian Federation dated March 21, 2017 No. 03-15-06/16239, dated March 15, 2011 No. 03-03-06/1/138).

The amount of compensation for delayed payment of wages is not taken into account for the purposes of income tax and tax when applying the simplified taxation system (Letter of the Ministry of Finance of the Russian Federation of October 31, 2011 No. 03-03-06 / 2/164). The issue of whether the amount of compensation paid to an employee for delaying the payment of wages is recognized as an expense for income tax purposes was once again considered by financiers in Letter No. 03-03-06/1/63083 of 04.09.2018. Officials did not give a clear answer, pointing out that the validity of the expenses taken into account when calculating the tax base should be assessed taking into account the circumstances indicating the intentions of the taxpayer to obtain economic benefits as a result of real entrepreneurial or other economic activity.

At the same time, there are court decisions in which arbitrators pointed to the right of taxpayers to recognize such expenses for tax purposes. The judges concluded that the costs in the form of the amount of monetary compensation paid by the employer to employees on the basis of Art. 236 of the Labor Code of the Russian Federation, are a sanction for violation of contractual obligations. Subparagraph 13 of paragraph 1 of Art. 265 of the Tax Code of the Russian Federation does not contain any restrictions on the accounting of sanctions as expenses, depending on the legal relationship (civil or labor) in which contractual obligations are violated, therefore, the expenses incurred are taken into account when taxing profits (FAS PO resolution dated 30.08.2010 in case No. A55-35672 / 2009, dated 06/08/2007 in case No. A49-6366 / 2006, FAS VVO dated 08.11.2008 in case No. A29-5775 / 2007, FAS UO dated 04.14.2008 No. Ф09-2239 / 08- C3 in case No. A60-14685/07).

The right of an employee to stop work.

Subject to the provisions of paragraph 2 of Art. 142 of the Labor Code of the Russian Federation, in the event that the payment of wages is delayed for more than 15 calendar days, the employee has the right to suspend work until the payment of the delayed amount to him, notifying the employer in writing. During the period of suspension of work, the employee has the right to be absent from the workplace during his working hours (Letter of the Ministry of Labor of the Russian Federation of December 25, 2013 No. 14-2-337). The Ministry of Labor in Letter No. 14-2/B-761 dated August 18, 2017 confirmed that due to the delay in the payment of wages, an employee may suspend work while on a business trip.

Note:

The refusal of an employee to perform work due to non-payment of wages to him is one of the forms of self-defense of labor rights (Article 379 of the Labor Code of the Russian Federation). At the same time, according to paragraph 57 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2, an employee can suspend work regardless of the employer's fault in non-payment of wages to him.

The Labor Code provides a list of cases when suspension of work is not allowed (part 2 of article 142 of the Labor Code of the Russian Federation):

during the introduction of martial law or a state of emergency;

in military bodies and organizations in charge of ensuring the country's defense and state security, rescue, search and rescue, firefighting, work to prevent or eliminate natural disasters and emergencies, in law enforcement agencies;

for civil servants;

in organizations directly servicing especially hazardous types of production, equipment. Employees of these organizations whose right to timely and full payment of wages has been violated may apply to the commission on labor disputes, the court or state supervision and control over compliance with labor legislation (Determination of the Constitutional Court of the Russian Federation of October 19, 2010 No. 1304-О-О);

in relation to work related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, provision of emergency and emergency medical care).

During the period of suspension of work, the employee has the right to be absent from the workplace (part 3 of article 142 of the Labor Code of the Russian Federation).

In connection with the suspension of work in the time sheet (form T-12, approved by the Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1), the code “NC” or “36” should be indicated for all days of suspension of work.

Note:

For the period of suspension of work due to a delay in the payment of wages to him, the employee retains average earnings (part 4 of article 142 of the Labor Code of the Russian Federation).

Here is a sample notification by an employee of an employer about the suspension of work due to a delay in the payment of wages for a period of more than 15 days.

Director of Matrix LLC

O. S. Borisov

by Senior Sales Specialist

O. P. Emelina,

address of residence: 603155, Nizhny Novgorod,

st. Kovalikhinskaya, 72, apt. 151,

tel.: +79021111111

Suspension Notice

In accordance with Part 2 of Art. 142 of the Labor Code of the Russian Federation, I inform you in writing that due to the delay in the payment of wages for a period of more than 15 days, I suspend work for the entire period until the payment of the delayed amount.

I notify that during the period of suspension of work during my working hours I will be absent from the workplace. For the entire period of suspension of work, I ask you to keep my average earnings.

The date of suspension of work is 28.10.2018.

The date of occurrence of the debt is 10/11/2018.

The total amount of debt is not less than 65,250 rubles.

The total duration of the debt is not less than 18 calendar days.

I ask you to pay the amount of the saved average earnings on the days of the issuance of wages. I ask you to report the results of the consideration of the notice and the measures taken to pay off wage arrears in the prescribed manner.

An employee who was absent from the workplace during the period of suspension of work is obliged to start work no later than the next business day after receiving a written notification from the employer about the readiness to pay the delayed wages on the day the employee goes to work (part 5 of article 142 of the Labor Code of the Russian Federation).

Here is a sample notification of an employee about the payment of delayed wages.

Limited Liability Company "Matrix"

(LLC "Matrix")

Senior Sales Specialist

O. P. Emelina

31.10.2018 № 21

Delayed Wage Notice

Dear Oleg Petrovich!

We notify you of the readiness of Matrix LLC to fully pay off wage arrears for September 2018. Payment will be made on the day you return to work.

In accordance with Part 5 of Art. 142 of the Labor Code of the Russian Federation, you must return to work no later than the next day after receiving this notice. Your absence from the workplace without good reason on the day following the receipt of this notice will be considered absenteeism and may serve as a basis for disciplinary action against you, up to and including dismissal under paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Director Borisov O. S. Borisov

The employer has the right to dismiss the employee for absenteeism in the event that he does not appear at the workplace without good reason on the next working day after receiving notice of the employer's readiness to pay him delayed wages or transfer them (paragraph "a", paragraph 6 of part 1 article 81 of the Labor Code of the Russian Federation).

It should be noted that there are decisions of arbitrators in which it was found unlawful in a situation where an employee did not come to work after partial repayment of the debt (appeal rulings of the Nizhny Novgorod Regional Court dated 03/20/2018 in case No. 33-2117 / 2018, St. .2016 No. 33-9739/2016, Ruling of the Moscow City Court dated January 24, 2014 No. 4g/3-51/14). The arbitrators proceed from the fact that the period of suspension of work lasts until the full repayment of the debt. The payment of its part does not interrupt this period and is not a basis for the employee to resume work. At the same time, he is not obliged to re-notify the employer about the suspension of work.

Bringing to administrative and criminal liability.

Administrative liability for non-payment or incomplete payment of wages and other amounts carried out within the framework of labor relations (if these actions do not contain a criminally punishable act) within the prescribed period is established in Parts 6, 7 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Currently, part 6 of this article provides for liability in the form of a warning or a fine in the amount of:

for officials - from 10,000 to 20,000 rubles;

for individual entrepreneurs - from 1,000 to 5,000 rubles;

for legal entities - from 30,000 to 50,000 rubles.

A person who has previously been subjected to administrative punishment under Part 6 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and repeatedly committed a similar offense, may be held liable under part 7 of this article. In this case, he is punished:

for officials - a fine in the amount of 20,000 to 30,000 rubles. or disqualification for a period of one to three years;

for individual entrepreneurs - a fine in the amount of 10,000 to 30,000 rubles;

for organizations - a fine in the amount of 50,000 to 100,000 rubles.

If an administrative offense has been committed and the officials through whose fault it was committed are identified, both the legal entity and the indicated officials may be held administratively liable under the same rule (part 3 of article 2.1 of the Code of Administrative Offenses of the Russian Federation, paragraph 1 p 15 Decree of the Plenum of the RF Armed Forces dated March 24, 2005 No. 5).

Criminal liability for non-payment of wages threatens the head if he acted out of selfish or other personal interest (Article 145.1 of the Criminal Code of the Russian Federation).

In case of partial non-payment of more than three months of wages, pensions, scholarships, allowances and other amounts established by law, the manager is threatened (part 1 of this article):

a fine of up to 120,000 rubles. or in the amount of wages (other income of the convict) for a period of up to one year;

deprivation of the right to hold certain positions or carry out certain activities for up to one year;

forced labor for up to two years;

imprisonment for up to one year.

Partial non-payment means making a payment in the amount of less than half of the amount payable (note to Article 145.1 of the Criminal Code of the Russian Federation).

In case of complete non-payment of more than two months of wages, pensions, scholarships, allowances and other amounts established by law or payment of wages for more than two months in an amount lower than the minimum wage established by federal law, the manager is threatened (part 2 of this article):

a fine in the amount of 100,000 to 500,000 rubles. or in the amount of wages (other income of the convict) for a period of up to three years;

forced labor for up to three years with or without deprivation of the right to hold certain positions or carry out certain activities for up to three years;

imprisonment for up to three years with or without deprivation of the right to hold certain positions or carry out certain activities for up to three years.

If non-payment (partial or complete) caused serious consequences, the head of the organization (branch, representative office, separate (structural) subdivision) may be held liable in the form (part 3 of article 145.1 of the Criminal Code of the Russian Federation):

a fine in the amount of 200,000 to 500,000 rubles. or in the amount of wages (other income of the convict) for a period of one to three years;

imprisonment for a term of two to five years with or without deprivation of the right to hold certain positions or carry out certain activities for a term of up to five years.

Both administrative and criminal liability can occur only if there is guilt (Article 2.1 of the Code of Administrative Offenses of the Russian Federation, Article 14 of the Criminal Code of the Russian Federation). Non-payment of wages entails criminal liability only if the organization has funds and non-payment is due to self-interest or other personal interest of the head of the organization (branch, representative office, separate (structural) subdivision).

The liability of the employer for the delay in the payment of wages involves not only the reimbursement of earnings not received by the employee, but also the payment of additional interest (monetary compensation). Compensation is due even if the employer is only a few days late with payments. If payment is delayed by more than 15 days, the employee has the right to suspend work. Administrative responsibility for the delay in the payment of wages is established in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, while the amount of the fine for this violation, committed for the first time, reaches 50,000 rubles. Criminal liability for non-payment of wages may threaten the manager if he acted out of selfish or other personal interest. If an employee applies for a delay in the payment of his salary to the GIT, it is possible to conduct an unscheduled audit of the organization.

Regulations on federal state supervision of compliance with labor legislation and other regulatory legal acts containing labor law norms, approved. Decree of the Government of the Russian Federation of September 1, 2012 No. 875 (effective as amended on April 30, 2018).

PBU 10/99 "Expenses of the organization", approved. Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n.

Instructions for the application of the Chart of Accounts for accounting of financial and economic activities of organizations, approved. Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n.

Employees of firms should receive remuneration for their work. The terms when the company must make such payments are fixed by the standards of the company. Sometimes a situation arises in which employees do not receive the amounts due to them in a timely manner. Therefore, it is important to know if the company delays wages, what to do in this case. After all, there is no money, but you have to pay the loan, for example, on time.

The norms of law establish that the payment of wages must be carried out at least twice a month. The employer can pay it more often, for example, every week. However, this moment must be reflected in the local acts of the enterprise.

The exact dates are set by the company's management independently, taking into account the specifics of the organization's activities and its financial capabilities. They should also be strictly reflected in the Regulations of the organization.

Information about these terms must be brought to the attention of employees. If a new employee enters the enterprise, then he must be familiarized with this standard against signature.

When setting the payment terms, it is necessary to comply with the existing requirements of the Labor Code of the Russian Federation, according to them:

the advance must be paid no later than the 30th day of the current month, and the final amounts of the salary must be paid before the 15th day.
It is not allowed to set payment terms for periods; they must be fixed in the form of an exact date. In addition, between the date of payment, the time interval cannot exceed 15 days.
The following terms are provided for the transfer of vacation pay - 72 hours before the employee goes on vacation. If the application for registration was submitted less than the deadline, then the deadline is set within 72 hours from the date of submission of the application.
The sick leave payment is due on the next pay date.
Upon termination of the employment contract, payment of wages must be made on the last day of work of this employee.

Attention! If a disputable situation arises, as a result of which the amount of payment in favor of the employee is disputed, then on the last day the undisputed part of it should be transferred.

How long can they be detained

If the company's management does not comply with the deadlines for paying salaries, then the question arises of its delay and the appearance of responsibility of the company's administration to the company.

For 2-3 days

If the payment of wages was delayed, with a delay of 2-3 days, the administration must calculate and pay compensation for the delay in wages. This compensation is calculated even for one day.

This action should be carried out by the company on its own, without a reminder from the outside. The minimum percentage applied is 1/150 of the rate of the Central Bank of the Russian Federation for each day.

Regions are given the right to increase its size. In addition, the economic entity itself has the right to increase the value of this percentage in its local acts.

Attention! If the period does not exceed 15 days, the employer has no other liability.

For 2 week

The Labor Code of the Russian Federation considers untimely payment of wages with non-compliance with a period of two weeks as a minor offense, and does not define it as a delay in wages, which entails the emergence of administrative and criminal liability for the employer.

After all, such liability appears with a significant period of delay. However, nothing cancels the obligation of management to calculate and pay compensation to the employee for late payment of wages. Its minimum size is 1/150 of the rate of the Central Bank of the Russian Federation.

Attention! The employee has the right to write an application for the suspension of work due to non-payment of wages and not go to work until full payment.

For a month

Each manager should remember that if the delay in salary is more than 15 days, then this is considered a serious offense, which leads to the emergence of administrative responsibility for the business entity and its officials. In this situation, the employer will not save the accrual of compensation payments to employees of the company.

Official site: git77.rostrud.ru

Can I file a complaint anonymously?

Some employees, fearing employer sanctions for filing a complaint with regulatory authorities, want to file it anonymously. But it is impossible to do so.

The law governing the acceptance of citizens' applications requires that each application contain information about the sender - his full name, address, contract information. If the complaint is submitted anonymously, it will be deemed ineligible and will not be considered.

Filing a complaint via the Internet also excludes anonymity. In this situation, you must either also indicate information about yourself, or use the State Services portal for authorization.

Attention! However, the law makes it possible to keep your appeal secret from the employer. The employee has the right to indicate in the application that he asks not to disclose his identity during the inspection.

Can you not go to work?

The Labor Code establishes the ability of an employee to protect his rights if the administration of the company did not pay wages on time. But this can be done only when the delay exceeds 15 days.

However, this must be done according to a clear algorithm, and not just once without appearing at work. In the latter case, the employee is threatened with dismissal under the article for absenteeism.

First of all, the employee must issue a notice in writing to the employer. It must refer to the article of the Labor Code and indicate that he suspends work until the full repayment of wage arrears.

It is best to make a notification in two copies, so that a mark of delivery is affixed to the second. If the secretary or manager refuses to accept the document, it must be sent by registered mail with confirmation of receipt.

After that, the employee has the right not to appear at his place. It is necessary to resume the performance of duties after a written notification of the employer that he is ready to pay off the debt.

Important! At the time of the stoppage of work, the employee, according to the Labor Code, retains a salary in the amount of average earnings. If the debt is only partially repaid, then the employee is not obliged to resume work.

Is there any delay compensation?

The law establishes that each employer, if he delays the payment of wages for at least one day, is obliged to calculate and issue compensation to the employee in cash for each overdue day.

The amount of compensation depends on several factors: the amount of salary arrears, the period of delay and the percentage of compensation provided for by law or other regulatory documents (in an amount not less than that established by law).

The amount of debt is the amount of salary without personal income tax, which the employee should have received in his hands;

The amount of the percentage on the basis of which the compensation is calculated must be fixed in the employment contract, salary regulation or other regulatory act.

The law establishes that the smallest amount of compensation should be 1/150 of the existing rate of the Central Bank. If the amount of compensation is not fixed in local documents, then the minimum amount should be used.

The leadership of the subject of the federation has the right to revise the percentage upwards. But for it to come into force, it is necessary to sign an agreement with the representative of the labor union in the region.

The key rate is set by the Central Bank of the Russian Federation. Periodically, the Central Bank makes its revision, which can be expressed both in an increase and a decrease. If the key rate changed during the delay period, then compensation must be calculated by dividing the debt period into segments during which its own rate was in effect.

Attention! The number of days of delay is calculated starting from the first day after the due date of payment of wages and up to the actual date of its payment. The period includes not only working days, but also weekends and holidays.

Responsibility of the organization and leader

Directors

Administrative and criminal types of liability may be applied to the head.

Administrative responsibility provides for the imposition of a fine of 1-5 thousand rubles on an official. In case of a repeated violation, the sanctions increase, up to the disqualification of the guilty person for a period of 1-3 years.

In addition, the manager may be held criminally liable if he had mercenary intent in non-payment of wages, or he spent the money intended for wages for personal needs.

In such a situation, it may be imposed:

Fine in the amount of up to 500 thousand rubles;
Penalty in the amount of the director's earnings for a period of up to 3 years;
Prohibition to work in this position or engage in this activity for a period of up to 5 years;
Performing forced labor for a period of 1-3 years;
Imprisonment for up to 5 years.

Organizations

The main type of responsibility that an organization bears when wages are delayed is the payment of monetary compensation, or liability. It occurs if there is a delay of at least 1 day.

In this situation, it is necessary to calculate and pay compensation. This must be done independently, without reminding the regulatory authorities. If during the audit it is found that the organization has not paid such compensation, penalties may be applied to it.

Attention! Administrative liability arises in accordance with the Code of Administrative Offenses in case of violation of the provisions of labor legislation. It provides for the imposition of a fine on the organization in the amount of 30-50 thousand rubles, or the suspension of activities for a period of up to 90 days. In case of repeated violation in this area, the amount of the fine increases significantly.

The difficult economic situation, the crisis, the lack of funds from debtors to pay off debts to an economic entity, or illegal actions of the administration, driven by personal motives, are far from an exhaustive list of what causes salary delays for employees of companies and enterprises. Due to their legal ignorance, they suffer the absence of material remuneration for work for many months, or even years, although they have the right to take certain actions to defend their interests, which will be discussed below.

Legal acts regulating wages and determining the consequences of its delay

The right of every employed citizen to receive the due remuneration for work, as well as certain compensation payments for its delay, within a clearly established period and in a certain amount, is due to:

Art. 37 of the Constitution of the Russian Federation;
Art. 57, 136, 140, 164, 192, 195, 236-237, 383 of the Labor Code (hereinafter - LC);
Art. 5.27 Code of Administrative Offenses (CAO);
Art. 145.1 of the Criminal Code (CC);
With. 122,223,226 of the Tax Code (TC);
Art. 151, 195, 314, 393 of the Civil Code (CC).

Certain adjustments were made to the above acts of Federal Law No. 273 of 06/03/2016, which should be taken into account.

The frequency of payment of wages stipulated by law and the concept of delay in wages

The employer, according to the law, must pay his subordinates remuneration for work twice - every half a month. The first payment is an advance, the second is a transfer of the remaining amount. Well-defined salary dates should be prescribed in the local acts of the business entity (employment contracts, collective agreements, internal regulations).

If the salary day falls on a weekend or non-working day, in accordance with Art. 136 of the Labor Code, the amounts due must be paid on the previous working day. This is true for both advance payments and the payment of the balance of the amount.

Some groups of employees are required by federal law to issue salaries in a different manner. For example, those who are leaving or those whose term of work contracts has come to an end, but there will be no extension - on the day of dismissal.

According to the Labor Code 2018, a salary delay is considered to be a non-payment of funds within the above terms (payment on the next day after the salary day, two days, a month) or an incomplete payment. Regardless of the reasons for it, it is illegal and justifies such actions on the part of a team member as filing a claim with the appropriate authorities or absenteeism.

Actions of an employee in case of salary delay

Team members should not wait more than 15 days for wages to be delayed. Already on the first day of violation of the terms of issue, an appropriate appeal should be sent to the head. Its unified form, adopted at the state level, is absent, which is why it can be drawn up in a free style. The main thing at the same time is to reflect in it information that conveys the essence of the appeal, that is:

data of the addressee to whom the document is sent (administrative unit of the economic entity);
information about the addressee sending the paper (one subordinate or several in the case of a collective appeal);
a detailed description of what happened, indicating the exact dates of payments and the period of delay;
a request to start a negotiation process, during which the incident is commented in writing and measures are taken, which are subsequently reported also in writing;

At the end, the date of preparation of the document and the signature of the originator are affixed.

Ignoring a written request and the absence of any practical actions to correct the situation is a reason for the employee to suspend the performance of his official duties. This is a forced measure aimed at stimulating the employer to fulfill its obligations.

Suspension of work by an employee

If there is a salary delay of more than 15 days, the employee has the right to suspend the performance of official duties until the debt to him is paid off (Article 142 of the Labor Code). To do this, he is obliged to inform the employer of his intentions in writing. For the period of suspension, he may not appear at the workplace at all, but must resume work the next day after receiving notification from his superiors about his readiness to pay what is due on the day he returns to the workplace.

Suspend your labor activity, according to Art. 142 of the Labor Code of the Russian Federation, it is prohibited:

during a military or state of emergency in the country;
civil servants who ensure the defense capability and security of the country, the vital activity of the population (supply of heat, gas, establishing communications), carrying out emergency and search and rescue operations, liquidation of emergencies;
law enforcement officers;
civil servants in general;
employees who monitor hazardous types of equipment or work in especially hazardous industries.

Payment for the time of suspension of work

By exercising his right to suspend the performance of duties, the subordinate can count on payment for this time (Article 142 of the Labor Code).

In order to prevent disputes with the tax authorities regarding the legitimacy of recognizing such payments as labor costs in taxation, it is advisable to reflect the relevant provisions in agreements with subordinates.

In addition, the employee is entitled to monetary compensation in the established Art. 236 of the Labor Code of the Russian Federation in the amount.

Thus, by delaying the payment of wages, the employer not only reimburses all funds not issued on time, but also pays compensation in excess of them.

Compensation for delayed salary - amount, formula

Art. 236 of the Labor Code of the Russian Federation states that the head who delayed wages, as well as sick leave, vacation pay, severance pay and other funds, pays them with interest equal to 1/150 of the Central Bank of the Russian Federation key rate effective for the period of non-payment of the entire amount for each day of its delay. He does this regardless of the absence of his guilt or the presence of objective reasons (arrest of accounts, sabotage of debtors). The amount of compensation, in accordance with the collective agreement, may be higher.

In case of partial payment of funds on the due dates, compensation is considered based on the unpaid amount.

If during the delay the refinancing rate has changed, the calculations are made taking into account these changes.

Compensation for delayed wages is calculated according to the following formula:

C \u003d A * D d * Ir,

where A is the amount of debt;

D d - the number of days of delay;

Ir is the refinancing rate at the time of settlement.

Thus, to determine the amount of compensation, you should multiply the amount of debt, the amount of the rate and the number of days of delay.

For clarity, consider the following example.

The estimated unpaid amount on time is 10,000 rubles, the delay period is 19 days, the refinancing rate is 10.5% (0.105).

Compensation for the entire delay period is as follows: 10.000 * 19 * 1/150 * 0.105 = 133 rubles.

A more complex example is as follows.

The local act of the company "Vector" defines the following dates for settlements with the team:

10th day - the issuance of salaries;
20th - advance payment.

The advance payment for January 2018, due to the financial difficulties faced by the company, was transferred to the bank card of sales manager Gorkovy K.I. 17.02 (and not 20.01) and salary - 14.03 (and not 10.02). His earnings are 40,000 rubles. advance payment - 16,000 rubles, the second part (excluding personal income tax) - 18,800 rubles. According to the decision of the Board of Directors of the Central Bank of the Russian Federation, the refinancing rate is 10%.

Compensation is calculated in several steps:

Compensation for advance payments not transferred on time = 16.000 * 28 * 1/150 * 0.1 = 298.67 rubles.
Compensation for the untimely transferred remaining part of the earnings = 18.800 * 32 * 1/150 * 0.1 = 401.07 rubles.

The accountant of the company Vector, these calculations are recorded in the calculation certificate and the posting is made: Dt 91.2 Kt 73.

Delay Compensation Taxation

Compensatory payments of personal income tax calculated by the above method are not charged, which follows from paragraph 3 of Art. 217 NK.

Insurance premiums (FSS, OPS and CHI) are calculated from them on a general basis, taking into account tariff rates (Letter of the Ministry of Labor No. 17-4 / OOG-701).

With regard to the recognition in tax accounting of compensation payments as labor costs, a dual situation has developed. On the one hand, being interpreted as a penalty for violation of contractual obligations, they, according to paragraphs. 13 p. 1 art. 265 of the Tax Code of the Russian Federation, may be included in non-operating costs. On the other hand, most financial experts insist that, due to the fact that their payments are made under labor rather than civil law, and also because they are not related to the working regime or working conditions, it is impossible to apply the rules of this subparagraph to them. In most cases, the courts take the side of taxpayers and recognize the inclusion as lawful.

Indexing delayed funds and compensation for delay

The employee has the right to count on indexing unpaid and calculated compensation payments on time due to the presence of inflationary processes. That is, wages delayed in April 2010 and calculated compensation payments paid in January 2016 must be indexed (Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004).

Compensation for non-pecuniary damage for non-payment of wages

Such compensation is guaranteed to employees whose rights are violated by management. It has a cost estimate (Article 237 of the Labor Code). Its unambiguous size is not fixed by the current acts and depends on the agreement of the parties.

When applying to the court, the initiator of the proceedings himself indicates the amount in the claim, which, subsequently, can be adjusted or excluded in principle.

Institutions to contact in case of salary delay

If it was not possible to solve the problem of delaying remuneration for work in a pre-trial order, that is, during negotiations with the management, you should protect your rights in the following competent authorities that apply certain measures to the violator within their competence:

commissions on labor disputes;
labor inspections;
the prosecutor's office;
court.

The reason for their response is a statement with a request to apply sanctions to the contracting party. It is drawn up in free form and must contain the name of the body, information about the addressee, a detailed description of what happened, a request for compensation (including moral damage), a list of attached documents (which may include extracts from the collective agreement, bank documents, etc.) .). If the plaintiff cannot provide the latter due to obstruction by the defendant, the authority considering the appeal is authorized to request them.

It is served in one of the following ways:

personally injured party;
by mail with acknowledgment of receipt;
through an authorized person who has a power of attorney for the presence of such powers.

Commission on Labor Disputes

If it functions in an economic entity and really resolves disputes arising between the administration and the state, the employee (or employees) who has been infringed on his rights must first apply to her with an application. Membership in it has representatives of both parties, the exact number of which is not regulated, but should imply the equality of all members.

The response time to the received application, subject to mandatory registration and recording, by the representative working body (trade union) is 10 days from the moment the commission was convened. Its decisions are not subject to publicity and are taken behind closed doors. If the application is satisfied, the team member receives his money in full on the date agreed at the meeting. Ignoring by the employer of his obligations even after the meeting allows the subordinate to receive an executive document with which he can go further.

Labor Inspectorate

In the event of a biased attitude of the members of the commission on labor disputes, the employee has the right to apply to the state institution - the labor inspectorate. It considers only written applications that contain detailed information about the applicant and the violator of his rights, the frequency of payments and the timing of the delay. A copy of the employment contract and other evidentiary documents must be attached to it without fail. You can transfer it personally, by mail, with a third party. They are obliged to respond to it within 30 calendar days, after which a written notification of the results of the audit carried out is provided. In case of confirmation of illegal actions of the administration, it is issued an order to cancel the existing debt.

Appeal to the court

It is possible to stop the unlawful actions of the employer, which consists in ignoring his obligations to subordinates, by filing a lawsuit with the district or magistrate court at the location of the employer. The claim must be accompanied by copies of the employment agreement, employment order, work book, payroll, bank statements, testimonies confirming the delay in payments.

According to the general rules, the district court must consider the claim within two months from the date of filing the application, and the justice of the peace - within a month.

For labor disputes, reduced deadlines for filing a claim are set - from 1 to 3 months, depending on the category of the case under consideration, in cases of non-payment of wages - 1 year (Article 392 of the Labor Code of the Russian Federation). However, Decree of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17, 2004 clarifies that missing the deadlines specified by labor legislation regarding filing a claim for the recovery of accrued but unpaid wages is not a valid reason for refusing to accept an application and refusing to satisfy claims, since this the offense is ongoing without a definitive term.

In the event that the claim is satisfied, all the compensations listed above are recovered by force.

Delayed wages are the responsibility of the employer

Late payment of funds due to employees leads to various types of liability.

Firstly, a disciplinary sanction against the guilty leader, imposed by the owner of the economic entity, the basis for which is the statement of the trade union. It is understood as a reprimand, dismissal or a requirement to compensate for the damage caused to the organization.

Secondly, a delay of more than 2 months, payment of less than the minimum wage, or partial payment of funds for more than 3 months. fraught with criminal liability. According to Art. 145.1. UK, it is expressed in:

payment of a fine (up to 120 thousand rubles or in the amount of delayed income multiplied by 12);
a ban on holding a position or carrying out activities for up to 60 months;
two years' imprisonment.

If there are serious consequences of the unlawful actions of the employer, the fine is increased to the amount of funds not paid on time, multiplied by 36 or half a million, and the imprisonment is extended by 1-5 years and is supplemented by a ban on holding office for a period of 3 years.

Thirdly, Art. 5.27 of the Code of Administrative Offenses provides for the following administrative responsibility:

payment of a fine by officials in the amount of 1.000 RUB. - 5.000 rubles;
payment of a fine by legal entities in the amount of 30,000 RUB. – 50.000 rub. or suspension of operation for 3 months;
payment of a fine by individuals in the amount of 1,000 rubles. – 5.000 rub. or suspension of operation for 3 months.

Arbitrage practice

A lawsuit filed by citizen Oleinikov V.M. on the repayment of the outstanding wages owed to him and the payment of compensation for the delay, complete with the required documents and calculation.

Consideration of the content of the claim revealed the following. An employment contract was signed with the applicant by the Service + company, which at a certain moment (during the change of ownership) was broken by the employee on his own initiative. On the day of dismissal, he did not receive the funds due to him. He repeatedly made attempts to resolve the case in a pre-trial order by referring to the leadership for negotiations, which were not crowned with success.

The respondent did not appear at the hearing. Instead, the authority received a document stating that the company did not agree with the accusations due to the change of ownership, the temporary non-functioning of the company for this reason and the lack of funds to pay off the debt. The amount owed was not specified.

Is the evidence provided by the defendant weighty and what verdict should the court make?

The court cannot take into account such arguments, since the specified reason for non-fulfillment of obligations to the employee does not justify the illegal actions of the management. The court satisfied the claim in full, as a result of which the applicant was paid the delayed funds and compensation in excess of them, and the defendant was charged with the funds for the consideration of the claim.