Deduction of material damage from wages. Recovery of material damage upon dismissal of an employee

Chercher 08.04.2020

To questions No. 808042., No. 809649 Financial liability. Hello, I can’t understand from your answers. If the employee’s guilt is proven by the commission that he caused damage worth 500 thousand, it turns out that the employer can still, by order, collect only one time the amount of 25,000 rubles - the average salary of the employee, but what about the rest of the amount. How to formalize the recovery of the full amount of damage, whether the employee’s consent must be formalized or the employer collects only the average salary in the amount of 25,000 rubles, once, and the rest through the court. or the employee pays the employer 25,000 rubles every month. until full repayment. Works for free. Thank you.

Answer

Answer to the question:

In order to understand whether the employee will bear full financial responsibility for the damage caused, it is necessary to determine whether this case relates to the cases listed in Article 243 Labor Code. This needs to be determined first. An employee can fully reimburse the amount of 500 thousand only if this is a case of full financial responsibility. Full material liability does not depend on the amount, the amount can be any, for example 5 thousand. As for the procedure for collecting damages, it is established by Article 248 of the Labor Code.

1. The employee bears full financial responsibility only in cases specified in Article 243 of the Labor Code. The list of these cases is exhaustive. Cases of full financial liability, firstly, include the case of full individual financial liability borne by an employee who is hired for a position or performs work that is provided for in the List, approved. By Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, an agreement on financial liability is concluded with him. Secondly, other employees of the organization may also bear full financial liability, but only in other cases directly established by Article 243 of the Labor Code. For example, if the damage was caused while intoxicated or intentionally.

Your employee does not initially qualify as a manual worker in accordance with Resolution No. 85. Therefore, in order to understand the full or limited liability he bears, the case needs to be verified. And only if this is one of the cases of full financial liability established by Article 243 of the Labor Code, then yes, you will be able to recover the full amount of 500 thousand. To do this, an inspection is carried out in accordance with the requirements of Article 247 of the Labor Code. And this can only be done in court.

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

The fact that an employee caused damage to the organization’s property should be recorded in a separate act. Current legislature does not oblige the employer to draw up such an act. Nevertheless, a timely document will allow you to record the fact of damage, establish an approximate or exact amount and subsequently confirm it. The form of the act is not fixed regulatory documents, so it can be composed in .

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.) in force in the area. In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). This procedure is established by the Labor Code of the Russian Federation.

Any direct effective damage caused to the employer can be recovered from the guilty employee. Namely:

amount of material damage;
expenses for acquiring or restoring property (for example, repairs);
expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident to the extent not covered by insurance compensation).

If the amount of damage exceeds a month’s salary or the monthly deadline for issuing a penalty has been missed, then compensation for damage is possible either voluntarily (with the consent of the employee) or through the court.

An employee can voluntarily compensate for the damage either fully or partially. In this case, by agreement of the parties, compensation for damage by installments is allowed. In this case, the employee must submit to the employer indicating specific payment terms. If in the future the employee decides to resign and refuses to reimburse the remaining amount of damage, then the outstanding debt can be recovered in general procedure- through the court.

It should be noted that with the consent of the employer, the employee can compensate for damage not only with money: he can also transfer equivalent property as repayment or undertake to correct the damaged.

Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions (inaction) that caused the damage.

Question from practice: how to determine average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure for calculating it is established based on the average daily (hourly) earnings (). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee's income should not exceed his average monthly earnings (). IN in this case The average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (, clause and Regulations approved).

An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.

In January, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.

The amount of material damage is estimated at 12,000 rubles.

Kondratyev’s average daily earnings is 900 rubles/day. There are 17 working days in January.

Kondratyev’s average monthly earnings in January amounted to 15,300 rubles. (900 rub./day × 17 days).

Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. Moreover, from each of his salaries - no more than 20 percent.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee

The organization identified a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full financial liability. She admitted her guilt.

Dezhneva’s average earnings in the month the shortage was discovered is 10,000 rubles. Since average earnings less than the amount damage, by order of the manager, 10,000 rubles are withheld from Dezhneva. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva’s salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover funds.

An example of calculating an employee’s salary, taking into account deductions within his average earnings

On January 12, 2013, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013 there are 17 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2013) is:
200,000 rub. : 250 days × 17 days = 13,600 rub.

Since the amount of material damage does not exceed average salary Kondratiev, all 10,000 rubles can be withheld from his income.

For January 2013, Kondratyev received a salary in the amount of 15,000 rubles. Kondratyev is provided with a standard personal income tax deduction in the amount of 400 rubles. (Kondratiev has no children).

The personal income tax amount for January 2013 is:
(15,000 rub. - 400 rub.) × 13% = 1,898 rub.

An employee's income after tax is:
15,000 rub. - 1898 rub. = 13,102 rub.

Maximum size deductions from an employee's monthly income are:
RUB 13,102 × 20% = 2620 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev’s salary. The remaining 7380 rubles. (10,000 rubles - 2,620 rubles) the organization will deduct from the employee’s salary in the following months.

Question from practice: who will compensate for damage in an accident for which an employee of the organization is found to be at fault

Damage in an accident that the employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (). In this case, the employee who caused the damage is obliged to compensate such expenses in full ().

The employee must reimburse:

the amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;
the cost of repairing the organization's car (if the organization did not enter into an agreement voluntary insurance property or insurance did not fully cover the cost of repairs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him ().

An example of calculating material damage caused by an employee in an accident. The employee compensates for the damage caused in full

Driver of the organization Yu.I. Kolesov became the culprit of the accident.

The damage caused amounted to 130,000 rubles. Insurance payment the injured party under compulsory motor liability insurance amounted to 120,000 rubles. Repairing your own car cost the organization 35,000 rubles. The organization did not provide voluntary property insurance.

The amount of material damage that the employee is obliged to compensate to the organization is:
130,000 rub. - 120,000 rub. + 35,000 rub. = 45,000 rub.

Question from practice: Is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances?

The answer to this question depends on the employee's consent to the retention. At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be drawn based on). At the same time, labor legislation does not establish any restrictions on deductions that an organization carries out not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.

If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:

deposit the required amount into the cash register;
with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
compensate for damage by installments.

This procedure is provided for by the Labor Code of the Russian Federation.

If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss. You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (
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Hello! Is it possible to deduct a lump sum amount of material damage discovered on the eve of dismissal in the amount of average earnings upon dismissal? Does the limit apply in this case - no more than 20%? Can deductions be made from compensation?

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). Average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered. You can deduct no more than 20% from an employee’s monthly salary. If deductions are made from the last salary payable upon dismissal of an employee, the employer has the right to withhold the entire amount. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Art. 138 of the Labor Code of the Russian Federation, it is necessary to obtain written consent from the employee to withhold. This will avoid arguments with him. If an employee does not agree to the deduction, he can voluntarily deposit the amount due from him to the organization’s cash desk. If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Situation: How to retain debt from an employee who quits. Deductions are made at the initiative of the organization

From the last salary to be paid, withhold the entire amount of debt. Even if it exceeds 20 percent of the salary this month. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Based on the systemic interpretation of Articles 137, 138 and 140 of the Labor Code of the Russian Federation, the limitation on withholding in the amount of 20 percent of the due salary applies only to monthly payment of salaries. When an employee is dismissed, the full amount of the debt can be recovered. This point of view is shared by specialists from the Russian Ministry of Health and Social Development in their private explanations.*

The chief accountant advises: since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Article 138 of the Labor Code of the Russian Federation, obtain the employee’s written consent to withhold. This will avoid arguments with him.*

It should be noted that in the event of a lawsuit with an employee, the court may side with the latter, obliging the organization to comply with the established limit - 20 percent of the salary amount. For example, the Supreme Court of the Republic of Buryatia concluded that Article 138 of the Labor Code of the Russian Federation limits the amount of deductions for each salary payment in order to provide the employee with an amount sufficient to satisfy his basic living needs. It does not matter whether the labor Relations, or the employee is dismissed. Consequently, when dismissing an employee, no more than 20 percent of the salary can be withheld from him (see cassation definition Supreme Court Republic of Buryatia dated February 27, 2012 No. 33-531).

Thus, having the written consent of the resigning employee to withhold the entire amount of his debt without restrictions, the organization will protect itself from legal proceedings with him.

N.Z. Kovyazina

Holding order

Withhold the amount of material damage from the employee’s income in this order.

First, calculate the amount of losses, which includes:
– the amount of material damage;
– expenses for the acquisition or restoration of property (for example, repairs);
– expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).

The scope of losses that an employee who has caused material damage to the organization is required to compensate is specified in Article 238 of the Labor Code of the Russian Federation.

Creation of a special commission

In commercial organizations

Indicate the identified shortage (cost of losses) in the matching statement.

Prepare matching statements:
- either according to the forms approved by paragraph 1.2 of the Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 (forms No. INV-18 or No. INV-19);
– or according to forms developed by the organization independently and approved by the head of the organization.

Damage assessment

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses within the norms natural loss. This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Written explanations from the employee

After determining the amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

Retention Order

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.

Calculation of the amount of damage

Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.

An amount of damage exceeding the average monthly salary can be recovered from an employee only through the court (if he bears full financial responsibility). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage by installments is allowed.

This procedure is established by Article 248 of the Labor Code of the Russian Federation.

Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Government Decree RF dated December 24, 2007 No. 922).

You can deduct no more than 20 percent from an employee’s monthly salary. Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.*

An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.

In January, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.

The amount of material damage is estimated at 12,000 rubles.

Kondratyev’s average daily earnings is 900 rubles/day. There are 15 working days in January.

Kondratyev’s average monthly earnings in January amounted to 13,500 rubles. (900 rub./day ? 15 days).

Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. At the same time, no more than 20 percent of each of his salaries.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee

Dezhneva’s average earnings in the month the shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, by order of the manager, 10,000 rubles are withheld from Dezhneva. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva’s salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover funds.*

An example of calculating an employee’s salary, taking into account deductions within his average earnings

On January 12, 2013, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013 there are 17 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2013) is:
200,000 rub. : 250 days ? 17 days = 13,600 rub.

Since the amount of material damage does not exceed Kondratiev’s average salary, the entire 10,000 rubles can be withheld from his income.

The personal income tax amount for January 2013 is:
(15,000 rub. – 400 rub.) ? 13% = 1898 rub.

An employee's income after tax is:
15,000 rub. – 1898 rub. = 13,102 rub.

The maximum amount of deductions from an employee’s monthly income is:
RUB 13,102 ? 20% = 2620 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev’s salary. The remaining 7380 rubles. (10,000 rubles – 2,620 rubles) the organization will deduct from the employee’s salary in the following months.

Deductions from compensation payments

Situation: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances

Yes, you can if the employee agrees to the retention.

At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be made on the basis of Article 137 of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from salaries. Compensation payments(daily allowances, compensation for the use of personal property), guaranteed by the Labor Code of the Russian Federation (Articles 168 and 188 of the Labor Code of the Russian Federation), do not apply to wages (Part 1 of Article 129 of the Labor Code of the Russian Federation). At the same time, labor legislation does not establish any restrictions on deductions that an organization carries out not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.

If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:
– deposit the required amount into the cash register;
– with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
– compensate for damage by installments.

This procedure is provided for in Article 248 of the Labor Code of the Russian Federation.

At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

Waiver of Damage Lien

The employer has the right to refuse to withhold damages from the employee. Refusal to recover may be complete or partial, taking into account the specific circumstances in which the damage was caused. This right is granted by Article 240 of the Labor Code of the Russian Federation.

Refusal to recover damages is permissible regardless of the following factors:
– the type of liability the employee bears (limited or full financial liability);
– form of ownership of the organization.

This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52.

Exempt the employee from compensation for material damage by order.

N.Z. Kovyazina

Deputy Director of the Department wages, labor protection and social partnership Ministry of Health and Social Development of Russia

Today we will give you step by step instructions, how to recover material damage from an employee without going to court, and we will also tell you about cases when it will not be possible to recover material damage to an enterprise from an employee.

In the course of the activities of any organization, cases may arise when it suffers material losses in the event of damage or loss of property, or as a result of a lost contract. This almost always happens due to the fault of the employees. And if the damage is significant, the employer’s desire to compensate for the damage caused is quite understandable. But, unfortunately, this is not always possible, and if possible, then not to the full extent.

If the administration of an enterprise intends to punish a guilty employee, then it is imperative that everything is done correctly, otherwise, even if the employer is right, the employee will easily challenge the decision in court.

For any punishment of an employee, be it a financial penalty or disciplinary punishment labor legislation provides for a certain procedure.

How to properly file a claim for material damage from an employee

Let us consider the procedure for recovering material damage from a guilty employee step by step.

Step 1. It is necessary to determine the material damage caused in general terms and the presumably guilty employee. This is done, as a rule, with the help of a memo from the employee’s immediate supervisor, or the person responsible for lost or damaged material assets, if the damage was not caused by him.
Step 2. A commission is being created to conduct official investigation. It is advisable to include in the commission an accountant of the material table and an employee who can assess the damage caused in the event of equipment failure. If there is no such employee in the organization, then you can invite an outside expert to participate in the commission. Or, another option, the commission requests expert opinion and includes it in the results of the investigation. During the investigation, members of the commission determine exactly what is missing or damaged and withdraw the exact amount in monetary terms.
Step 3. The commission requests an explanation from the guilty employee. Make it better in in writing and hand it to the employee against signature. This step is carried out in the same way as when conducting investigations regarding the imposition of disciplinary sanctions.
Step 4. The commission examines all documents and makes a conclusion about the degree of guilt of the employee and the possibility of recovering damages from him. This cannot be done in all cases; they will be discussed in more detail below.
Step 5. An order is issued to withhold funds from the employee in accordance with the conclusion made. If it is impossible to recover damages from the employee, then it is not necessary to issue an order.
Step 6. Transferring the order to the accounting department for the reasons for deducting amounts of money from the employee’s salary.

What to consider when conducting an investigation and calculating the amount of damage

When conducting an internal investigation and drawing up a conclusion, you need to remember the following nuances:

The amount of damage caused is calculated based on residual value equipment or purchased goods. That is, if an employee breaks a completely written off computer, nothing can be recovered from him. Also, if he has lost material assets, then the amount is calculated based on the purchase price, without taking into account the markup.
Simultaneously with the recovery of material damage, disciplinary liability may be imposed on the employee in the form of a reprimand or reprimand.
Lost profits cannot be included in the amount of material damage. That is, if due to the fault of the employee the contract was not concluded, its amount will not be considered material damage. In this case, the only way to punish the employee is disciplinary action.

When nothing can be withheld from an employee

There are four cases when an employer does not have the right to withhold material damage from an employee. They are enshrined in law.

Actions of force majeure. This includes natural and man-made disasters during which the employee was unable to preserve property and material assets.
Conditions of normal economic risk presuppose that the employee fulfills his official duties and causing damage in their course. For example, when introducing new technological processes and work methods.
Causing damage out of extreme necessity and for self-defense. For example, when trying to detain a thief, an employee dropped cash machine and broke it.
Lack of conditions necessary for storing material assets due to the fault of the employer. For example, the employer did not provide the company's cashier with a safe in which to keep material assets, or there were no bars on the windows or an alarm system in the warehouse.

If during the inspection at least one of the above circumstances is revealed, the employer is deprived of the right to withhold material damage from the employee, at least partially.

When can material damage be withheld in full?

The full cost of damage caused by an employee can be withheld in the following cases:

The employee is the head of the enterprise. Either the chief accountant or deputy manager, but provided that an agreement on full financial responsibility is concluded with them.
Any other employee with whom an agreement on full financial responsibility has been concluded and who receives material assets according to documents. This primarily includes the storekeeper, cashier, and salesperson.
An employee who received material assets one-time, but with paperwork. For example, he was given cash to the report.
The employee was intoxicated when causing material damage.
The employee caused damage to the property of the enterprise not during the performance of official duties. For example, after the end of the working day, the driver used company car and broke it.
The employee caused the damage as a result of malicious intent.
The employee was convicted of damaging property.
An employee who did not have the right to disclose information protected by law.

When damage can only be partially contained

If the conditions for full financial liability cannot be applied to the employee, but it is also impossible to relieve him of it, then the damage caused will be partially withheld from him, in the amount of average earnings.

Note! The damage is not deducted in the amount of the salary for the current month, but rather the average earnings for the year are calculated. With some forms of remuneration, these can be completely different amounts.

Other nuances when withholding material damage

Even if the employer does not have the legal ability to withhold from the employee the full amount of damage caused, the employee can agree to reimburse the entire amount.
More than 20% cannot be withheld from an employee’s earnings. In some cases, the amount can reach 50%, but this decision can only be made by a court.
If an employee quits or quits during the investigation, it will be possible to recover damages in full only through the court. Of the payments due to him upon dismissal, no more than 20% can be withheld.

Only if the entire procedure for deducting the amount of damage caused from the employee is strictly followed and there is no violation of the law, the employer can be sure that the employee will not be able to challenge the deduction in court.

You can ask our on-duty labor law lawyer your questions free of charge.

Question:
The employee made a mistake when performing work, which led to additional expenses (material). The employee wrote an explanatory note and admitted guilt.
Is it possible to deduct from the salary the amount of damage caused to the employer?

Answer:
According to Part 1 of Art. 130 of the Labor Code of the Russian Federation, deductions from an employee’s salary can be made by order of the employer. But the law establishes restrictions on deductions from wages: in accordance with Part 1 of Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary are made only in those cases provided for by the Labor Code of the Russian Federation and others federal laws. The Labor Code of the Russian Federation allows deductions from the employee’s wages within the framework of financial liability to the employer (Part 1 of Article 248 of the Labor Code of the Russian Federation), but in compliance with a certain procedure.
So, in accordance with Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (Part 2 of Article 238 of the Labor Code of the Russian Federation). According to Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to data accounting taking into account the degree of wear and tear of this property.
At the same time, by virtue of Part 1 of Art. 233 of the Labor Code of the Russian Federation, the financial liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its culpable unlawful behavior (actions or inaction), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws.
Thus, financial liability occurs in the simultaneous presence of the following conditions: the presence of damage; unlawful behavior (actions or inaction) of the perpetrator; causal connection between the unlawful act and material damage; guilt in committing an unlawful act (inaction). The absence of at least one of these conditions excludes the possibility of bringing the employee to financial liability (see, for example, the letter Federal service on labor and employment dated October 19, 2006 N 1746-6-1). To establish these circumstances, Article 247 of the Labor Code of the Russian Federation provides for the employer’s obligation to conduct an inspection, including requesting a written explanation from the employee to establish the cause of the damage.

The direct procedure for collecting damages is established by Art. 248 Labor Code of the Russian Federation. In accordance with Part 1 of Art. 248 of the Labor Code of the Russian Federation, recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court (Part 2 of Article 248 of the Labor Code of the Russian Federation). Failure to comply with this procedure by the employer in accordance with Part 3 of Art. 248 of the Labor Code of the Russian Federation gives the employee grounds to go to court to appeal the employer’s actions.
Thus, within the meaning of these norms, by order of the employer, the amount of damage caused from the guilty employee may be withheld from wages if the following conditions are simultaneously met:
- the amount of damage does not exceed the employee’s average monthly earnings;
- the order for recovery was issued no later than one month from the day when the employer finally established the amount of damage caused by the employee.
Let us note that compensation for damage within the limits of the average monthly salary is made by order of the employer, regardless of whether the employee agrees to compensate for the damage or not.
In addition, it must be borne in mind that in accordance with Part 1 of Art. 138 of the Labor Code of the Russian Federation, in the absence of other deductions, the employer has the right to withhold no more than 20% of the salary amount for each deduction from wages. Consequently, if the amount of damage within the average monthly earnings does not exceed 20% of the employee’s salary, the amount of damage can be withheld by the employer at a time.
If the amount of damage caused does not exceed the employee’s monthly earnings, but is more than 20% of the employee’s salary, deduction is made from the employee’s salary for several months until the amount of damage is fully recovered. Accordingly, the amount of deductions for each such payment should not exceed 20% of the employee’s salary. At the same time, the Labor Code of the Russian Federation does not prohibit making deductions by order of the employer in a smaller amount than is established by Part 1 of Art. 137 Labor Code of the Russian Federation. Details Category: Selections from magazines for an accountant Published: 07/14/2015 00:00

Deductions from wages at the initiative of the employer are possible for:

unearned advance payment issued against wages;
unspent and not returned in a timely manner amounts issued on account in connection with transfer to work in another area, etc.;
overpaid wages and other amounts overpaid to an employee due to a counting error or upon proof of his guilt in idle time or failure to comply with labor standards;
the amount of compensation for unworked vacation days upon dismissal of an employee before the end of the year;
amounts of benefits (temporary disability and maternity benefits) overpaid in the event of a calculation error (for example, an arithmetic error was made when calculating earnings for a period) or unlawful actions of an employee (for example, an employee concealed information affecting the amount of benefits).

Such cases of deductions at the initiative of the administration are listed in Article 137 of the Labor Code of the Russian Federation and Part 4 of Article 15 of the Law of December 29, 2006 No. 255-FZ.

Here the question may arise: what is a counting error? If you used an incorrect algorithm for calculating benefits or vacation pay, such a counting error is not recognized. In particular, the amount of temporary disability benefits accrued in larger size due to the fact that the length of service was incorrectly calculated. But if an arithmetic error was made in the calculation (for example, subtraction was made instead of addition), then the excess can be retained. This is just a counting error.

Also, material damage caused to the organization by him or her can be deducted from an employee’s earnings. The basis here will be articles 238 and 240 of the Labor Code of the Russian Federation. But remember: in this case, only the amount of direct actual damage is compensated; the employee does not pay for the loss to the organization (Article 238 of the Labor Code of the Russian Federation). So, if, for example, an employee breaks a machine, then you can recover from him only the cost of repairs and spare parts. He is not obliged to compensate for the cost of products that were not made during the repair of the equipment.

The employee does not bear any financial liability if the property was damaged during natural disaster, due to inadequate security, etc.

A complete list of such situations is given in Article 239 of the Labor Code of the Russian Federation.

Situation: is it possible to deduct a fine from an employee’s salary for violating internal labor regulations?

No you can not. In the Labor Code of the Russian Federation there is no such thing as a fine. The legislation gives the organization the right to financially punish an employee for causing material damage (Article 238 of the Labor Code of the Russian Federation). An employee cannot be fined for violating internal labor regulations.

For such an offense, the employee can be subject to disciplinary liability(Article 192 of the Labor Code of the Russian Federation). For example, make a reprimand or reprimand. As a last resort, if an employee systematically fails to comply work schedule, he can be fired.

Attention!

For deduction from wages of amounts not provided for by the Labor Code of the Russian Federation, the organization bears administrative liability under Article 5.27 of the Code of the Russian Federation on Administrative Offenses as a violation of labor legislation.

How to hold

To withhold any amount from an employee's salary, the organization must issue an order.

The order must be issued within a month from the date of expiration to return the advance, repay debts or incorrectly calculated payments. An exception is the collection from a resigning employee of amounts accrued for unworked vacation days. There is no monthly period for withholding these amounts.

This procedure is prescribed in Article 137 of the Labor Code of the Russian Federation.

Example

The manager of Alpha LLC Kondratyev A.S. received a salary of 37,000 rubles.

From this amount the employee must pay:

Membership fees - 100 rubles;

Accountable amounts not returned in a timely manner (advance for a business trip) - 1000 rubles;

Repayment payments for the purchase of goods - 5,000 rubles.

At the initiative of the administration, only 1,000 rubles can be withheld from Kondratiev’s salary. debts on accountable amounts.

The organization can make other deductions only on the initiative of the employee himself (at his request).

To withhold amounts to repay material damage caused to the organization, the manager must also issue an order within a month. This period is counted from the day when the commission establishes the amount of material losses. This is established by Article 248 of the Labor Code of the Russian Federation.

If the employee does not agree with the grounds and amount of the withholding, then the organization will have to go to court to recover the missing amounts (Articles 137, 248 and 391 of the Labor Code of the Russian Federation, Article 11 of the Civil Code of the Russian Federation). You will also have to go to court if, within the month allotted by the Labor Code of the Russian Federation, the manager did not issue a retention order.

What is the limit on the total amount of deductions?

The amount of material damage that is recovered from an employee depends on what kind of liability is provided for it: full or limited. With limited financial liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).

However, the specific procedure for calculating it for such cases has not been determined. This means that general rules need to be used. Paragraph 4 of Regulation No. 922 establishes that average earnings must be calculated based on the actual accrued wages and the actual time worked for the 12 previous calendar months. In this case, the months preceding the month in which the employee caused the damage.

That is total amount salaries for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days or hours on the employee’s schedule in the month in which he caused the damage.

Yes, in this case the average earnings will depend on the month of calculation. However, there is no reason to simply divide your annual earnings by 12.

Example

In August 2015, due to the fault of an employee of the organization A.S. Nabokov, the server failed. The amount of material damage is estimated at 25,200 rubles.

An agreement on full financial responsibility has not been concluded with the employee, which means that no more than the average monthly salary can be recovered from him. The accountant thought so.

The employee works a regular five-day work week. The billing period is from August 1, 2014 to July 31, 2015, the employee worked 220 working days.

The salary for these days amounted to 388,904.15 rubles.

There are 21 working days in August 2015. From here the average monthly earnings will be:

RUB 388,904.15 : 220 days × 21 days = 37,122.67 rub.

This means that you can recover from the employee the entire amount of damage caused by him, that is, 25,200 rubles.

In case of full financial liability, the employee is obliged to compensate the entire amount of damage caused (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the amount of penalties.

Full financial liability of an employee occurs in two cases.

Firstly, in situations provided for in Article 243 of the Labor Code of the Russian Federation. For example, when a shortage of valuables entrusted to an employee is discovered, if the employee caused damage due to an administrative offense (for example, an accident), etc. In this case, it does not matter whether an agreement on full financial liability has been concluded with the employee or not, he must compensate for the damage fully.

Example

The driver of the organization, Yu. I. Kolesov, became the culprit of a traffic accident. Insurance compensation was paid to the injured party by the insurance company.

Damage caused to the organization's car is recovered from Kolesov. The amount of damage caused is 45,000 rubles.

The employee is not talking about full financial responsibility. Nevertheless, regardless of Kolesov’s average salary, the organization can recover from him the entire amount of damage caused - 45,000 rubles.

Secondly, in situations where an agreement on full financial responsibility has been concluded with an employee. Such an agreement must be concluded with employees whose positions are listed in Appendix 1 to Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

In particular, these are cashiers, storekeepers, etc. The standard form of the agreement is given in Appendix 2 to Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

Example

The organization discovered a shortage of money in the cash register in the amount of 12,000 rubles. The organization established that cashier Dezhneva A.V. left her workplace, leaving the cash register office unlocked.

An agreement on full financial responsibility was concluded with the employee.

The organization has the right to recover from Dezhneva the entire amount of damage caused - 12,000 rubles.

In some cases, financial liability may be provided for in employment contract with an employee. This is allowed in relation to the deputy heads of the organization and the chief (Article 243 of the Labor Code of the Russian Federation).

At the same time, the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in the employment contract with him or not (Article 277 of the Labor Code of the Russian Federation).

The full amount of damage can be recovered from an employee under 18 years of age only if he:

intentionally caused damage to the organization;
caused damage while intoxicated;
caused damage as a result of a crime or administrative violation.

Such cases are listed in Article 242 of the Labor Code of the Russian Federation. At the same time, there is no need to conclude an agreement with the employee on full financial responsibility.

Situation: is it possible to deduct from an employee the cost of lost property issued against a receipt?

Yes, you can.

Labor legislation allows you to recover damages from an employee in the event of a shortage of valuables entrusted to him under a one-time document (Clause 2, Part 1, Article 243 of the Labor Code of the Russian Federation). Such a document could be a receipt. There is no standard form for the receipt, so it can be drawn up in any form. For the loss of property received against receipt, the employee bears full financial responsibility.

How long can you hold

No more than 20 percent can be withheld from each employee’s salary. This is exactly the rule that is spelled out in Article 138 of the Labor Code of the Russian Federation. If the employee's monthly salary is not enough to repay the entire amount of the debt, keep the balance in the following months.

Situation: from what amount of earnings - before or after personal income tax withholding - should the maximum amount of withholding be calculated at the initiative of the organization

Determine the maximum amount of deductions by first reducing the employee’s salary by the amount of personal income tax. According to Article 138 of the Labor Code of the Russian Federation, the maximum amount of deductions must be calculated based on the income due to the employee. And the employee is entitled to income reduced by the amount of personal income tax.

Example

In April, due to the fault of an employee of the organization A.S. Kondratyev, the printer failed. An agreement on full financial liability has not been concluded with the employee. The amount of material damage is estimated at 12,000 rubles.

Official salary Kondratiev - 15,000 rubles. His average monthly salary is 16,000 rubles. Therefore, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles.

Standard tax deductions are not available to employees.

The personal income tax amount for April is 1950 rubles. (RUB 15,000 × 13%).

The maximum withholding amount for April is:

(RUB 15,000 - RUB 1,950) × 20% = RUB 2,610

Since this amount is less than the damage caused by Kondratyev, the accountant withheld only 2,610 rubles from his salary for April. The remaining 9390 rubles. (12,000 - 2610) will be deducted from the employee's salary in the following months.

Situation: how to retain debt from an employee who quits. Deductions are made at the initiative of the organization

And in this case, you also have the right to withhold no more than 20 percent from the employee’s last salary. The judges also agree with this (see the decision of the regional court of June 24, 2010 in case No. 21-103).

What to do in a situation where the last payment is not enough to pay off the debt? It all depends on specific situation. If we are talking about overpaid vacation pay, then all that remains is to invite the employee to voluntarily repay the debt. And if he refuses (which is also possible), the debt will have to be forgiven. The fact is that there is no reason to consider the resulting vacation pay debt as unjust enrichment. After all, this can only be discussed in case of dishonesty on the part of the employee or a counting error. This follows from paragraph 3 of Article 1109 Civil Code RF.

Here are examples of cases decided in favor of workers - rulings of the Moscow Regional Court dated December 15, 2011 in case No. 33-25971 and the Moscow City Court dated August 8, 2011 in case No. 33-2316.

If we are talking about material damage, then simply agree with now former employee how he will repay you the remaining amount of debt. The same applies to unreturned imprest amounts. The employee refuses to repay the debt? This means you will have to go to court.

The maximum amount of deductions increases to 50 percent of take-home pay if you withhold money from the employee’s income under executive documents. Moreover, if at the same time you collect something on your own initiative, the total amount of deductions should also not exceed 50 percent (letter of Rostrud dated May 30, 2012 No. PG/3890-6-1). The maximum amount of deductions can reach 70 percent of earnings, if, according to executive documents, the employee must pay (Article 138 of the Labor Code of the Russian Federation):

compensation for harm caused to health;
compensation for damage to persons who have lost a breadwinner or caused by a crime;
child support for minor children.

But keep in mind: your share of deductions in any case cannot be more than 20 percent.

At the same time, the requirements of executive documents are mandatory. Compared to deductions initiated by the administration, they must be satisfied first. This means that an employee’s debt to the organization can be deducted from his income only after all obligations under writs of execution have been repaid.

It turns out that if, according to a writ of execution, it is necessary to withhold, for example, 30 percent of the salary, it will no longer be possible to collect the employee’s debt to the company itself (letter of Rostrud dated May 30, 2012 No. PG/3890-6-1).

The fact is that deduction from wages, for example, of amounts overpaid to an employee due to an accounting error, is not exceptional case, provided for in Part 3 of Article 138 of the Labor Code of the Russian Federation, when it is possible to recover up to 70 percent of earnings.

Example

In April, the organization received a writ of execution for the recovery of 6,000 rubles from employee Kondratyev A.S. in repayment of an outstanding loan. In addition, at the beginning of April, the employee had an unreturned and unconfirmed advance payment issued for travel expenses in the amount of 2,000 rubles.

Kondratyev’s monthly salary is 18,000 rubles. Standard tax deductions are not available to employees.

The personal income tax amount for April is 2,340 rubles. (RUB 18,000 × 13%).

The maximum amount of deductions for April is:

(RUB 18,000 - RUB 2,340) × 50% = RUB 7,830

To compensate for the outstanding loan, the accountant withheld 6,000 rubles from Kondratyev’s salary.

At the initiative of the administration, 3,132 rubles can be withheld from an employee’s salary. (RUB 15,660 × 20%). However, a large amount has already been withheld from the employee (RUB 6,000). Therefore, in April, the accountant will not be able to withhold anything against the debt to the organization.

Thus, the amount of unreturned advance payment is RUB 2,000. will be deducted from the employee’s income only in the next month.

At the same time, at the request of an employee, the company has the right to withhold any amounts from his salary (letter of Rostrud dated September 16, 2012 No. PR/7156-6-1). Therefore, you can ask the employee to express his consent in writing to the withholding of his debt to the organization.

If he agrees to this, then the company will be able to collect money under the writ of execution and withhold from the employee his debt to the company.

Example

In September, due to the fault of an employee of the organization A.S. Neverov. The printer has failed. The amount of damage amounted to 12,000 rubles. In this case, you can recover from the employee no more than his average monthly earnings. Let's assume that its size was 37,122.67 rubles. Thus, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles. Neverov’s official salary is 30,000 rubles. He is not entitled to standard tax deductions.

At the same time, in early September, the company received a writ of execution for the same employee to pay alimony in the amount of 25 percent of earnings. The company must satisfy this requirement first of all. Therefore, in order to withhold the amount of damage from the employee, the company obtained his written consent. At the same time, Neverov indicated in his statement that he was asking to withhold no more than 50 percent of the salary in hand.

For the first half of the month, the company pays an advance of 50 percent of the salary. The employee was paid 15,000 rubles. (RUB 30,000 × 50%). To pay alimony, the accountant withheld 3,750 rubles. (RUB 15,000 × 25%). And the same amount for damages.

At the end of the month, the personal income tax amount was 3,900 rubles. (RUB 30,000 × 13%).

The following amount may be withheld from wages for the second half of the month to pay alimony:

(30,000 rub. - 3,900 rub. - 15,000 rub.) × 25% = 2,775 rub.

And the same amount for damages.

Thus, the accountant withheld only 13,050 rubles from the employee’s salary for September. (3750 × 2 + 2775 × 2), including 6525 rub. (3750 + 2775) for damages. The remaining 5475 rubles. (12,000 - 6525) will be deducted from the employee's salary in October.

What are the rules for withholding material damage?

Withhold the amount of material damage from the employee’s income in this order. First, calculate your total loss, which includes:

the amount of material damage;
expenses for acquiring or restoring property (for example, repairs);
expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident to the extent not covered by insurance compensation).

The scope of losses that an employee who has caused material damage to the organization is required to compensate is specified in Article 238 of the Labor Code of the Russian Federation.

Situation: who will compensate for damage in an accident for which an employee of the organization is found to be at fault

Damage in an accident that an employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). In this case, the employee who caused the damage is obliged to compensate such expenses in full (subclause 6, part 1, article 243 of the Labor Code of the Russian Federation).

The employee must reimburse:

the amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;
the cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him (Article 240 of the Labor Code of the Russian Federation).

To confirm the amount of material damage in an organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables. Indeed, in these cases an inventory must be carried out, and for this an inventory commission must be created. Indicate the identified shortage (cost of losses) in the matching statement ( standard forms No. INV-18 or No. INV-19).

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created.

For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses within the limits of natural loss. This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Situation: how to determine average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a special methodology for calculating average monthly earnings in this case. For all cases of maintaining average earnings, a uniform procedure for calculating it on the basis of average daily (hourly) earnings has been established (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it.

The different names that are used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922).

Let us remind you that you can deduct no more than 20 percent from an employee’s monthly salary. Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.

This procedure for collecting damages is established by Article 248 of the Labor Code of the Russian Federation.

An employee can:

deposit the required amount into the cash register;
with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property).

If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss.

You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation).

At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).