Reduced employee benefits: legal subtleties

You work for yourself, work, and here again - the head announces a layoff. Unfortunately, many have encountered this situation.

Immediately there are many questions that need clarification. For example, what should be the employee benefits when reducing? How to legally fire an employee? Is it possible to reduce pensioners, pregnant women?

Your position is no longer needed

One of the first questions that arise when an employee is being laid off is: “What payments are due to me?” A similar situation occurs both in large companies and in small ones. By law, a reduction must be announced in no less than two months.

The employee must sign that he was notified on time. If an employee refuses to sign, a special act is drawn up. If this rule is not observed, then a person can be reinstated. As soon as signatures are received, the company is obliged to offer new vacancies that match the employee’s specialty.

When the two-month period comes to an end, the employment contract is terminated and payments to the employee are made upon reduction of staff. He is given an allowance in the form of an average salary. It remains for the period of employment (but not more than two months).

Reduction of the employee. Payouts. Labor Code

This topic is regulated by article 178 of the Labor Code of the Russian Federation. What is she talking about:

1. An employee who has been reduced is paid benefits. Its amount is equal to the average monthly earnings.
2. The company on the day of dismissal is obliged to pay the employee all debt on salary. As well as compensation for unrealized holidays.
3. Within sixty days after the reduction, the person is paid the average monthly income.
4. If he appealed to the employment service no later than two weeks from the day of dismissal, but did not find the required vacancy, then by decision of this body, compensation for the reduction of the employee is extended for another month.
5. Money should be issued on time, otherwise the dismissed person can challenge his rights in court.

More on Amounts

So, what are the employee benefits for staff reductions? Firstly, it is financing in the form of average monthly income. It is paid up to 60 days. Secondly, the allowance, which is issued immediately at the time of dismissal.

Thirdly, the head is obliged to compensate for all arrears of salary, as well as unused vacation. Fourth, in special cases, the employee may be charged two weeks average income. This applies to the moments when he does not agree to transfer to another service in cases considered in the legislation. Also, payments to the employee during reduction are made in connection with:

• with his draft in the army;
• with the reinstatement of the person who previously held this position (resignation or appeal through a court);
• with refusal to move to another locality;
• with the recognition of his incapable of work;
• with refusal to work due to changes in the terms of the contract.

Here you need to remember that personal income tax is not withheld from mandatory amounts. The company is obliged to pay monetary compensation both in case of liquidation of the company, and in case of violations in the preparation of the employment contract (if they were committed through no fault of the employee).

Collective and individual agreements retain payouts while reducing the employee. The deadlines for issuing all relying money are limited to the last day on which the employee is still listed in the organization. If the delay in payments occurred, then for every day on them there are interest not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation.

Law violation

The fact of illegal dismissal is often found in everyday life. The employer wants to save his money and can play on ignorance of labor laws. Anyone who has been reduced by collecting evidence of a violation of his rights can always file a lawsuit in court. The deadline is thirty calendar days from the date of receipt of a copy of the dismissal order or the issuance of the work book. Good reasons for being late in handling may increase the time it takes to file a lawsuit. Also, the reason for filing a lawsuit is the refusal to pay interest on the delay due to the worker.

Conditions for a “Correct” Reduction

If the manager decided to reduce the number of employees, then a number of rules must be observed:

1. The actual reduction of workers. The fact of dismissal is included in the staff list of the organization. An order is also issued to approve the new schedule.
2. Under article 179 of the Labor Code, it is necessary to provide in writing a number of other vacancies corresponding to the qualifications of the employee.
3. Under article 180 of the Labor Code, the chief must notify the employee no later than two months before dismissal. The employee needs to sign that he is warned on time. The manager also approves a plan to communicate the reduction. In this case, a newspaper, a bulletin board, a meeting can be used.
4. A selective trade union body should consider dismissal. It consists of a lawyer, personnel director, representative of the trade union committee. The fact of the creation of the commission is also issued an order.
5. According to the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004, the head of the organization is obliged to confirm the legality of the dismissal and to comply with its order.

Who should not be fired

Based on Article 261 of the Labor Code, a pregnant woman cannot be reduced. In the case of its work under a fixed-term contract, the enterprise is obliged to extend the agreement after this period. A woman will only need a medical certificate confirming her situation.

But it can be reduced in the case when it was formalized by the organization during the absence of the previous employee, and there is no possibility of transfer to another vacancy. Also, women who have children under three years of age and single mothers with a child under 14 or a disabled child under 18 are not subject to dismissal.

In the field of education, there is one caveat. As for the reduction of teachers in educational institutions, this action is possible only after the end of the school year.

Useful subtleties

1. Calculation of payments for the reduction of an employee who is a part-time employee is not performed. The reason for this is the presence of a primary place of business.
2. A worker who has been laid off is entitled to receive an early retirement pension. Moreover, he needs to issue it no earlier than two years before the legal date.
3. If an employee has worked in the organization for less than six months, then for unused vacation compensation payments while reducing the employee is still produced.
4. Severance pay is not taxable single social tax pension contributions, personal income tax. As well as insurance contributions to the FSS. Compensation for unrealized vacation days is subject to personal income tax, but not the UST.
5. If payments to the employee during the reduction are not carried out at the expense of budgetary funds, then they are taken into account in the cost of salaries. Thus, income tax is reduced (clause 9, article 255 of the Tax Code).
6. An employer can dismiss an employee without warning, and all payments must be kept. An agreement of this kind, however, like all others, must be executed in writing. If the worker and the head of the organization have not come to an agreement, then the reduction should take place on a common basis.

Reduction of the employee. What payments are accrued? Calculation example

We give the following example. The employee began his career on 09/01/07 and fell under the reduction of 04/23/09 (received notice from his superiors). He quit June 24, 2009.For 12 months, the amount of salary amounted to 126 thousand rubles. The beginning of work in the new organization - 05.09.09. We calculate the average earnings, the amount of benefits and compensation for unrealized leave.

So, what is the payment procedure for reducing the employee?

First, we will calculate the allowance due. To do this, divide the entire salary by 12 months and the number of working days. We get the average earnings per day - 357.14 rubles. We multiply this figure by thirty calendar days and get 10714.2 rubles.

Secondly, we calculate the amount that will be paid within a few months. Since the employee in the first of them did not get a new job, the size of the severance pay goes towards the saved average income. In this case, the compulsory payment of average earnings during the second month is carried out. The amount of the benefit will be 11071.34 rubles (the average daily earnings are multiplied by 31 calendar days). For the third month there will be no payments, as the employee got a job in a new organization.

Thirdly, we will calculate the allowance for unused vacation. Based on the fact that the employee worked for ten months, compensation will be paid for 23.33 days. We multiply 28 vacation days by the number of worked months (10) and divide by their number in the year (12). Multiplying the figure by the average daily earnings, we get the full amount of payments - 8 332.08 rubles.

Dismissal of an employee

Article 180 of the Labor Code states that employees of organizations are notified of a reduction two months before it. In the same article there is a clause in which it is written that the chief, by agreement with the subordinate, can terminate the employment contract without waiting for the declared date. All payments for early reduction of the employee are saved. But he will lose compensation if the basis for termination of the contract is a notice of termination of his own free will. Thus, in order for an early reduction to occur with all legal payments, it is necessary to do the following:

1. The manager draws up an offer to the employee to cancel the employment contract before the official termination date.
2. The employee writes a written consent to this offer.

Compensation payments for the reduction of the employee are not made if the statement states "I ask you to fire me at my own request." Or there is a letter from the new leader asking for transfer to another organization. If the statement says “I ask you to dismiss due to the reduction of my position before the deadline”, then the employer’s mandatory consent will be required.

Going to court

Since it is beneficial for the employer to fire an employee of his own free will, psychological pressure may be exerted on the latter. And this is an occasion to appeal to the court. Coercion to write a statement will need to be proven. When considering a labor dispute, the court draws attention to the following points:

1. What are the reasons for writing the application - the employee’s own desire or coercion.
2. What are the circumstances of its design.
3. As far as the appeal is written, the presence of the necessary details in it.
4. What are the intentions of the worker.
5. What is the procedure for dismissal.

If the court finds the termination of employment unlawful, the manager is obliged to reformulate the grounds for dismissal, as well as make all payments to the employee in case of reduction. It is also possible to reinstate in a previous position with monetary compensation for involuntary absenteeism.

Dismissal of an employee retirement age

When reducing a retired employee, payments must be made as follows:

1. Compensation for unused holidays.
2. Allowance.
3. Maintaining average earnings for the period of employment no more than two months. If the organization is located in the Far North, then up to three.

If an employee falls ill while searching for a new job

An employee has the right to submit a sick leave to the manager or to the territorial body of the Fund social insurance within thirty days from the date of termination of employment.Sick leave is paid at a rate of 60% of the average employee income.

Derivatives contract

According to article 79 of the Labor Code, this type of contract is terminated at the end of its term. The chief must inform the employee within three days and must be in writing. Seasonal workers must be notified seven days in advance. They are still entitled to a benefit of two weeks of average wages. If the contract after the expiration date has been reissued as unlimited, then the employee is subject to dismissal on a common basis.