In Art. 137, 138 of the Labor Code of the Russian Federation, a procedure has been established for withholding amounts from employee earnings and restrictions on their sizes. Deductions are allowed only in cases provided for by the Labor Code and federal laws. The establishment of rules and restrictions is aimed at ensuring the protection of workers' rights to wages.
General order
Deductions from the employee’s earnings for the repayment of arrears arising from him to the employer are carried out with the aim of:
- Compensation for the unspent advance payment provided to the employee on account of the salary.
- Repayment of an unspent and non-returned advance payment made to an employee in connection with transferring to another location to another job or on a business trip or in other cases.
- The return of the amounts paid to the employee in connection with the accounting errors made, if the employee pleaded guilty to non-fulfillment of labor standards or to idle time. In the latter case, the basis is the decision of the body authorized to consider individual labor disputes.
According to the provisions of Part 2 of Art. 137 of the Labor Code of the Russian Federation , deductions are allowed upon dismissal of an employee until the end of the year on account of which paid leave was provided. Retention is made for unworked days. An exception to the rule under Art. 137 of the Labor Code of the Russian Federation , there are cases of termination of the contract on the grounds established in article 77 (part 1, paragraph 8), Art. 81 (h. 1 p. 1, 2, 4), Art. 83 (p. 1, 2, 5, 6, 7).
The timing
As established in Part 3 of Art. 137 of the Labor Code of the Russian Federation , the employer may order the withholding specified in para. 2, 3, 4 of the second part of the norm, before the expiration of 1 month. from the date of completion of the period allotted for the return of the advance payment, incorrectly calculated payments or repayment of the debt. This rule applies if the employee does not object to the grounds and amount of retention.
Exceptions
They are provided for in Part 4 of Art. 137 of the Labor Code of the Russian Federation . Salary excessively paid to an employee cannot be recovered from him, except in cases:
- Errors in the calculations.
- Upon recognition of the guilt of a citizen in simple or non-fulfillment of labor standards, as confirmed by the labor dispute committee.
- Excessive payment of earnings due to unlawful actions of an employee established by the court.
Art. 137 of the Labor Code of the Russian Federation with comments
The content of the norm is consistent with the provisions of the ILO Convention on the Protection of Wages. Article 8 of this document provides that deductions from earnings may be made within the limits and in the manner prescribed by national legislation, collective agreements or decisions of arbitration courts. Workers should be familiar with the established rules.
It should be noted that domestic legislation does not provide for the possibility of holding deductions on the basis of a collective agreement, since the relevant conditions would worsen the position of a citizen in comparison with those established in the legislation, which is unacceptable.
Any deductions at the discretion of the employer related to the assignment of part of the production costs to the employee, satisfaction of claims made by third parties to both parties to the legal relationship (the employer and the employee) without a court decision or the consent of the employee are prohibited.
Taxation
Within the meaning of 1 part of Art. 137 of the Labor Code of the Russian Federation , deduction from employee earnings may be carried out in the case directly established in federal law. Currently, the Tax Code provides for the obligation of the employer as a tax agent to calculate and transfer to the personal income tax budget.
Tax deductions are made according to the rules of Art. 226 Tax Code. Moreover, its amount may not exceed 50% of the salary. Withholding is carried out directly from income at the time of actual payment.
Fines
They also relate to deductions permitted by Art. 137 of the Labor Code of the Russian Federation . The Administrative Code contains Art. 32.2, according to the provisions of which the fine must be paid by transferring / depositing the specified amount to a banking or other organization.
If you fail to pay on time, a copy of the decision on the imposition of this administrative sanction is sent by the authorized body / employee to the employer to forcibly withhold the amount from the guilty earnings.
A fine may be imposed on the perpetrator as a criminal punishment. The collection of the established amount is carried out by judicial decision.
As article 31 of the PEC (Criminal Executive Code) establishes, a person must deduct the fine imputed to him before the expiration of a month from the date the court decision comes into force.
If the order is not executed voluntarily within the prescribed period, the penalty may be levied on the property of the perpetrator. If the amount of recovery is less than 2 minimum wages, the person’s material assets are not enough to pay off the debt, deduction of the amount from the guilty earnings is allowed. Monitoring the execution of court orders rests with FSSP employees.
Correctional Retention
They are also made on the basis of a sentence.
According to the provisions of article 40 of the PEC, deductions are made from the earnings of the convict in the amount determined by the court. Timely and correct collection of the established amounts rests with the employer. The retention rules are enshrined in 44 articles of the PEC.
Executive production
It is carried out on the basis of documents issued by judicial orders / decisions, amicable agreements, etc.
According to Article 64 of the Federal Law No. 119, deduction from salary may be carried out to recover:
- periodic payments;
- amounts of no more than 2 minimum wages;
- debts in the absence of the debtor's property sufficient to pay off obligations.
Nuance
The legislation provides for the possibility of making a deduction from the salary to pay off the employee's debt to the employer in the cases established by Art. 137 of the Labor Code of the Russian Federation, and as compensation for the latter property damage.
The rules for damages to the employer are enshrined in article 248.
Advance Payments
Unused funds issued to an employee in connection with a business trip, transfer, etc., must be returned to him voluntarily. The employee must report on the costs incurred. In case of tax evasion, the amounts will be collected in a forced manner.
In this case, 2 conditions must be met:
- The employee does not dispute the grounds and amount of the penalty.
- The employer issued an order before the expiration of a month from the expiration date provided for the return of advance amounts.
Explanations to Part 3
Employee objections must be in writing. The employee in his application may refer to the illegality / groundlessness of the deduction of amounts, as well as an incorrect determination of the amount of recovery.
The deadline for the return of an unspent advance made on account of a salary is determined by agreement of the parties. For amounts issued in connection with a business trip, the return period is 3 days from the date the employee returned.
Unworked vacation days
When an employee is dismissed before the end of the year on which he was granted leave, the deductions provided for in norm 137 are made at the time of the final calculation. The rules for providing paid days of rest are enshrined in article 122 of the Code.
The list of exceptions to this rule is expressly fixed in part 3 of article 137 and is considered to be exhaustive.
Counting Error
In practice, cases of excessive payment of salary amounts to a citizen in connection with incorrect arithmetic actions of the person responsible for the calculations are not uncommon.
To withhold such amounts, 2 conditions must be fulfilled, which were mentioned above: the absence of objections from the employee and the tenant's compliance with the monthly period for issuing the recovery order. In case of missing the indicated period, the amounts can only be withheld in court.
When implementing the provisions of Part 4 of Art. 137 of the Labor Code of the Russian Federation, one important nuance should be taken into account. As a counting error, the incorrect application of legislation governing the procedure for remuneration of labor, the terms of a collective agreement or an employment contract cannot be recognized. Accordingly, excessively paid funds in such cases are not recoverable. Withholding of these amounts may be appealed in court.