The issue of payments under an employment contract in favor of an employee will always be relevant. Clearly set deadlines, the amount of payment is a guarantee that is given to the employee for his work. In practice, it happens that this amount is cut for certain reasons. In the article, we consider what constitutes deduction from wages according to the application of the employee, under what conditions is this procedure possible.
Essence, types, legislative regulation
In general, this legal institution is envisaged in order to ensure the observance of the interests of the state, including its supervisory bodies, other creditors of the worker, as well as in the interests of the employer if the employee is indebted to him. Deductions from the employee ’s salary are certain deductions in favor of any categories of persons. Some of them can be made only in cases strictly stipulated by law.
Depending on the availability of the employee's respective obligations, withholding funds from wages may be:
- Mandatory: in favor of the regulatory and supervisory authorities (Federal Tax Service, PF, FSS), according to executive documents;
- by the will of the employer (by virtue of the Labor Code of the Russian Federation);
- according to the statement of the employee.
In general, the procedure is governed by the following regulations:
- Labor Code of the Russian Federation (Articles 137, 138);
- Tax Code of the Russian Federation (in terms of the calculation of personal income tax);
- SK RF (for the payment of alimony for children);
- Federal Law No. 229 “On Enforcement Proceedings”.
The last normative act establishes the procedure for foreclosing on the salary of the debtor, the order of deduction from the salary of certain amounts.
For non-fulfillment by the employer of the legal requirements of the executive documents of the Administrative Code of the Russian Federation (Article 17.14) provides for administrative liability in the form of a fine on legal entities in the amount of 50,000 to 100,000 rubles, for officials - 15,000-20000 rubles.
Mandatory deductions
The legislation provides for the possibility of the following deductions from remuneration:
- Personal income tax;
- fines for administrative offenses, as well as for criminal articles;
- sums on executive documents (after the court decision comes into force).
In these cases, the employee’s application for deduction from the salary and the order of the head is not required. It is made by law, i.e. automatically and without the consent of the person.
When making deductions according to executive documents, the employer is obliged:
- from the date of receipt of this isp. a sheet (other document specified in the law) to deduct money from a salary of an employee in accordance with the requirements set forth in the submitted paper;
- no later than 3 days from the date of deduction, transfer the indicated money to the recoverer (bailiffs).
Employee claim deductions
Today, deductions in any size and for any purpose can be made in a certain order. The most common are:
- personal insurance contributions;
- to repay loans from employers / banks;
- for charity;
- union membership fees, etc.
In these cases, the employee writes to the employer the corresponding deduction from the salary. A sample of such a document may be provided by an accountant. If, for example, a worker takes money from the employer, then to automatically make deductions from the salary in order to pay off monthly payments under the contract, he must indicate the clause granting the company the right to deduct a certain amount from his earnings. In this case, a statement must be made.
Features that you should pay attention to when conducting such a procedure:
- the employer has the right, but is not obliged to accept this application for deduction from wages;
- no limits have been set for the amount;
- the employee can determine the type of income from which deductions will be made (for example, only from the salary, and not from the sick leave allowance);
- the worker takes upon himself the bank commission for the transfer, which he must indicate in the application.
From the moment of signing the application, the employer will deduct the amount from the employee’s monetary allowance in a certain amount in favor of this or that person. For his part, he can always withdraw such a voluntary statement, thereby terminating the deductions.
Unlike mandatory contributions, the period for the execution of voluntary payments is not clearly established - it all depends on the will of the employee. Moreover, the latter may terminate this procedure at any time by submitting an application to the employer. In the case of mandatory deductions, the final point may be either a court decision or the adoption of a new law.
In general, deduction from wages according to the application of the employee is a convenient tool that will make life easier for the employee. He will not need to search for details every time, make transfers, keep receipts, etc.
For the benefit of the employer
Today deductions according to the Labor Code of the Russian Federation (Article 137) are possible in certain cases:
- if an advance has been issued on account of a salary, but it has not been worked out;
- if an unspent advance payment was received and not returned on account of a business trip (for the purpose of transferring to another locality, in other cases);
- if the employee has been paid an excess of the amount to be refunded due to a counting error, as well as due to the recognition by the relevant body of the employee guilty of non-compliance with certain standards or simple;
- if the employee leaves before the end of the year from where he has paid but unworked vacation days (the rule does not apply if the employee leaves according to certain articles of the Labor Code of the Russian Federation; exceptions will be discussed below).
The specified list is exhaustive. It should be noted that making such deductions is a right and not an obligation of the employer. The calculation of deductions from wages in this case will be carried out by the accounting department of the company.
Limitations in the amount, grounds
In the Labor Code of the Russian Federation (Article 138), the limit on deductions from the salary is reflected as a percentage of its total amount:
- up to 20% is the limit according to the basic rule;
- up to 50% - in certain cases established by federal law;
- up to 70% - applies to individual requirements (on child support, in the appointment of correctional labor, compensation for harm and damage).
In addition, the law establishes a list of payments that are not subject to the deduction rule (benefits, material assistance, travel expenses, etc.).
The general conditions for making deductions from the salary in favor of the employer are:
- salary withholding periods: the procedure must be completed no later than 1 month from the end of the period established for the return of the advance payment / incorrectly calculated amounts / repayment of the debt;
- the employee does not dispute the motives and amount of withholding.
Such grounds are established by the Labor Code of the Russian Federation in accordance with ILO Convention No. 95.
It follows from the second condition that the employee must be notified of the reasons and amount of deductions. If he does not agree to this, he can file the appropriate objections, appeal to human rights instances. Thus, in these cases, the law does not require a worker to apply for deduction from wages.
At the same time, Rostrud takes a different point of view: he believes that the second condition should be expressed in the writing by the employee of a written consent to this procedure. Is this true from the point of view of the law, what will this procedure look like and what do the judicial authorities think in this regard? We will deal with these issues in the following sections.
Is employee’s written consent required?
The Labor Code of the Russian Federation clearly says that a prerequisite is to exclude the employee from contesting the reasons and the amount of the deduction. Representatives of Rostrud, resolving such disputes, interpret this paragraph, replacing the expression prescribed in the specified article of the Labor Code of the Russian Federation with “obtaining written consent from the employee”, i.e. in fact, equating this procedure with deduction from wages at the request of the employee. According to practicing lawyers, this point of view is not entirely true, since the exclusion of disputes can also be expressed in the form of passive silence of the employee.
As the commentary to this paragraph of the law says, the main thing is the lack of disagreement with the employee. It turns out that the necessary conditions for making deductions from the salary in the form of mandatory written consent of the worker of the Labor Code of the Russian Federation does not contain. On the contrary, the employee’s objections must be expressed in writing, where he may invoke the illegality of the grounds and procedure for withholding the indicated amounts from the salary.
We give a simple example from practice. The employee was sent on a business trip for two weeks, received the corresponding subsistence allowance, but, having stayed there only two days, left on his own initiative, without warning the employer and not returning the remaining amounts.
The employee no longer got in touch, a week later verbally expressed his intention to quit, but did not provide a statement. During his absence at the workplace, acts of absenteeism were drawn up, notifications were repeatedly sent about the need to appear to complete the calculations and continue to perform their functions.
Prior to the expiration of a month from the day set for the return of the trip amount, the employer made deductions from the salary by issuing an appropriate order, of which a notice was sent to the employee. In this situation, it is physically impossible to take written consent from the employee, which Rostrud speaks about, since he is not at work, ignores calls and notifications.
Withholding the amount of the advance on account of the trip, the exclusion of the claim of the part of the salary - all these facts on the part of the employee can be regarded as the lack of contestation of the withholding procedure.
Amounts paid in excess - are they recoverable?
Wages “above the norm” cannot be demanded back from the employee, with the exception of situations:
- errors in the calculations;
- if the worker’s guilt in non-compliance with the norms or simple is established;
- if the unlawful actions established by the court were noticed by the worker.
Moreover, errors in the application of labor or other legislation are not included in this list. That is, the collection of these amounts from a former worker through the court is impossible. Travel advances are also equivalent to them. Such a conclusion can be drawn from law enforcement practice. Courts equate advances against salaries, business trips, and unjust enrichment, which cannot be recovered, with the exception of a counting error or bad faith situations in the actions of the employee.
It follows that all calculations, incl. deductions must be made upon dismissal. This is the employer's last chance.
Counting errors include:
- errors in arithmetic calculations;
- typos
- typos, etc.
Technical errors (for example, double transfer of the same amount of money, calculation of salary by an accountant on the basis of a higher salary) are not counted as accounting, therefore, the courts did not recover the amounts received by the employee by such a lucky chance, in favor of the employer.
Thus, theoretically in such situations, deductions are made from wages only with the consent of the employee. The second option is to recover the damage caused to the organization from the guilty person, for example, from an accountant.
When are deductions not made?
This procedure cannot be carried out under article 137 of the Labor Code of the Russian Federation when an employee is dismissed in the following situations:
- in case of refusal to transfer to another job for honey. indications / in the absence of the employer of a specific suitable vacancy;
- to reduce;
- upon liquidation of the enterprise / termination of the IP;
- transfer of ownership of the company's property;
- reinstatement of a person who previously performed these duties by decision of the Rostrud or the court;
- a call to the ranks of the defenders of the Fatherland;
- recognition incapable of performing labor functions on medical. indications;
- death of employee / employer (FL);
- emergency (accidents, catastrophes, war, etc.).
If you have been deducted under these circumstances, you can appeal the actions of the employer to the labor inspectorate or court. At the same time, it is worth paying attention that any deduction from wages is necessarily reflected in accounting documents, incl. in hand-issued settlement sheets.
Inviolable amounts
It is worth noting that deductions can not be made from all types of monetary content, to such untouchable “reserves” according to Art. 101 Federal Law No. 229 may include the amounts:
- in compensation for harm to health / in connection with the death of the breadwinner;
- payments to persons who have been injured in the line of duty / in the event of their death, to members of their families;
- for caring for disabled persons;
- separate targeted payments (for drugs, travel, etc.);
- MSC funds, etc.
This money is targeted, i.e. intended to meet specific social needs, therefore, can not be held without the written consent of the employee. In other cases, these actions will be illegal and may be challenged.
Compensation and retention - is there a difference?
The rules for bringing a worker to liability for causing property damage to an organization are regulated by the Labor Code of the Russian Federation (chapter 39). In this case, it is necessary to distinguish the recovery of the indicated amounts of damage from the usual deductions from wages. The documents that need to be issued for each of the procedures will also differ.
First of all, other grounds have been established for redress: this is the fact of causing damage, the unlawful behavior of the employee, his fault, cause-effect relationship. If the amount of harm inflicted is lower than the average earnings of the worker, the manager may give a separate order for recovery no later than one month from the day the final amount is revealed. If at the same time there is a voluntary application of the employee to withhold from the salary the value of the damaged property, then you can safely issue the relevant order. In other cases, recovery of damages is only through the court.
Priority
When making deductions from the salary, the following procedure is established:
- Personal income tax.
- Penalties on writ of execution: compensation for harm, damage, alimony, compensation for non-pecuniary damage, etc. If the amount is not enough to pay off the claims of one turn in full, then the debts are satisfied in proportion to what is due between all collectors.
- At the initiative of the employer.
- Withholding from salary at the request of the employee.
It is such a sequence established by law. If funds from the salary remain after all claims have been paid off, the employee can send them to satisfy his obligations to third parties by submitting a corresponding application to the employer. It is written in any form. We will analyze its components in more detail in the next section.
Statement example
Consider the employee’s voluntary will to withhold in the field of pension savings.
Mandatory structural elements are:
- “Heading”: indication of the head to whom the document is addressed (accounts department of the enterprise), full name of the employee, position held (you can specify the personnel number);
- Title of the document;
- main text: is written in any form with a mark on the amount of deductions, the recipient and the period;
- signature, date.
Then, the finished document must be submitted to the head or other authorized person for registration and sighting.
A sample application for withholding from the salary of additional contributions for private pension provision can be found below.
Another example of voluntary deductions at the request of an employee may be the transfer of child support in the absence of a court decision. This is possible when the parents voluntarily agreed on the amount and rules for the payment of these funds.
Then in the application that the employee will submit to the accounting department or manager, you will need to indicate the following data:
- name of company, person to whom it is addressed;
- Name, position;
- name of the document “statement”;
- Name of the recipient of the amounts and passport data;
- information about the child (children);
- fee amount (fixed amount or%);
- beneficiary's bank details (mailing address);
- retention start date;
- signature, date.
Thus, the grounds for the product of deductions from the salary of a worker are quite diverse. , . . . , . . , .