The receipt of monetary compensation is the right of the employee, and its payment is the obligation of the employer. Salaries are set in the form of rates, salaries and piece-rates. If the employer cannot pay it on time, the employee has the right to demand compensation. This is spelled out in the labor code.
The essence of the problem
Failure to comply with the deadlines for the payment of income is a frequent offense for which the employer may incur material, administrative and even criminal liability. According to legislative standards, salaries should be calculated at least once every two weeks. Dates are set and prescribed in the collective agreement. If they were violated, not even through the fault of the employer, compensation must be paid.
Punishment for violation of the terms of settlements
- A fine from one to fifty thousand rubles.
- Stoppage of activity for 90 days.
- If you repeatedly violate the terms of payments to the employer, you will be disqualified for 1-3 years.
Compensation for delayed salaries is calculated with a percentage of 1/300 of the discount rate of the Central Bank of the Russian Federation. Calculated in the same way termination payments employee vacation pay. If this figure has been increased, this must be reflected in the documents. Compensation is accrued for the entire outstanding amount, including bonus and advance payment. It is not taxed. If the day of payment of income coincides with a weekend or holiday, then accrual should be carried out on the eve, so as not to incur additional material costs.
Calculation of compensation for delayed salary
If the deadline for the payment of income has been postponed for two weeks or more, the employee may notify the manager in writing that he is stopping work until full payment of debts. If the matter reaches the court, most likely, the employee’s claim will be satisfied, even if the organization’s management is not guilty of violation of the deadlines. The amount of compensation in this case will be determined on the basis of an employment contract and a court decision. After applying, the employee may not go to work. But after a positive decision is made by the court, he must begin his duties. In this case, absenteeism will be regarded as a violation of labor discipline.
More often than not, the employer simply repays his debt and does not pay compensation. As a result, there is a violation of the rights of employees and the avoidance of responsibility of managers. In this case, the employee may go to court. For violation of the deadlines, not only the head, but also the head of the personnel department, and the accountant will be fined. If the delay in wages lasts more than 2 months, then this can lead to criminal liability with a fine of 120 thousand rubles. and imprisonment for up to seven years.
Formula
Compensation = Amount of debt * (% of refinancing of the Central Bank / 300) * number of days of delay.
or
Compensation = З / П * КД * (1/300) * СТ, where
З / П - the amount of debt;
KD - term;
ST - refinancing rate (in fractions of a unit).
Examples
1. The advance payment (on the 20th day) the employee received on time in the amount of 5 thousand rubles. The salary is 15 thousand rubles. Salary was paid only on the 23rd day of the next month. According to the schedule, the debt repayment period is the 5th. That is, there is a delay in salary. Compensation for a delay of 18 days should be calculated at a refinancing rate of 0.082.
K = 10000 * 18 * 1/300 * 0.082 = 49.19 (rubles).
The amount is small, but it still has to be paid.
The employee should get on hand: 10,000 + 49.19 = 10,049.19 rubles.
2. The collective agreement states that if there is a delay in salary, compensation for the delay is 0.06% daily.The calculation for July 2014, as well as the payment of income for August, was carried out on September 17, 2014. The amount of debt is: in July - 30 thousand rubles., In August - 50 thousand rubles. That is, there is a delay in salary. Compensation for the delay should be calculated on the basis of the terms:
- 30 thousand rubles (salary for July) - 43 days. Violation begins on August 6.
- 20 thousand rubles (advance for August) - 28 days (from August 21 to the day of actual payment - September 17).
- 30 thousand rubles (salary for August) - 12 days (from September 6 to September 17).
Amount of compensation:
(30 * 43 * 0.06% + 20 * 28 * 0.06% + 30 * 12 * 0.06%) * 1000 = 1326 rub.
Here's how you can calculate compensation for delayed pay.
Material liability
If there is a delay in salary, compensation for the delay should be calculated on the basis of discount rate Central Bank in the amount of 1/300 (Article 236 of the Labor Code of the Russian Federation). This minimum may be increased by the employment contract. The first day is calculated from the next after the due date on the schedule. The latter is the date of actual repayment of the debt.
If the% refinancing of the Central Bank of the Russian Federation has changed, then the calculation of compensation for delayed salaries is made separately for each rate. The organization must pay this amount together with overdue wages. This obligation arises for entrepreneurs regardless of the reasons for the delay. That is, in budgetary organizations untimely receipt of funds is not a basis for refusing to accrue compensation.
Art. 142 of the Labor Code of the Russian Federation provides that if the period is postponed for two weeks (15 days) or more, the employee may stop work. The right to compensation will remain with him. Compensation for delayed personal income tax is not taxed (Article 217 of the Tax Code). You cannot stop work if:
1. A state of emergency has been introduced.
2. An employee works in an organization that provides the country's defense capability, or is employed at a state enterprise.
Administrative responsibility
Recall that for violation of the terms of settlements with subordinates, management may incur a fine (Article 5.27 of the Code): for officials - 1–5 thousand rubles, for legal entities - 30–50 thousand rubles. The organization may also be suspended for 90 days. An official may be disqualified for 3 years for repeated violations. The prosecution does not depend on the duration of the delay. The basis for writing an application to the relevant authorities can be even one day of non-payment of income.
Criminal liability
If the terms of settlements were violated due to the selfish goals of the employer, then he may be involved in Art. 145.1 Criminal Code of the Russian Federation. Moreover, the total delay in salaries should exceed three months, and the full non-payment of income - two.
What should an employee do?
- Contact your employer for compensation.
- Pause work. To do this, it is necessary to notify the director and receive confirmation of the notice: the employer must sign on one of the copies of the application. If he does not, then you can send the paper by mail with a notice of delivery. Then the work can be stopped after receiving the letter by the head. This downtime should be paid based on the average employee earnings. But after receiving a written notice of readiness by the employer to pay compensation, it is necessary to proceed with their duties.
3. Contact the CCC. The employee has the right to appeal to the employer and the union with the proposal to create a labor dispute commission. It should include an equal number of members from management and employees. You can write a statement to the CCC on violation of the terms of settlements within 3 months from the first day of non-payment. This paper must be officially registered and reviewed within ten days in the presence of an employee. If the claims are substantiated, then the CCC takes an appropriate decision and notifies the parties to the conflict about it. After receiving the paper, the employer must pay the debt to the employee within three days.If he does not agree with the decision, then he can appeal it within ten days. Then the question is sent for reconsideration.
4. Write a statement to the State Labor Inspectorate (GIT). If there is a delay in salary, compensation has not been paid, and all appeals to the management have not yielded results, then we can proceed to tougher measures. In the application that is submitted to the GIT, you need to indicate your contact details, full name, address of the location, full name manager, briefly and clearly state the essence of the complaint and the facts, note the period and outstanding amount.
It is recommended to attach a copy of the contract to the paper, evidence of non-payment, if any. The application can be submitted in person, sent by registered mail with a notification or by e-mail. Documents are considered within 30 days. If as a result of the audit it is established that the deadlines for the payment of income are violated, the employer will receive an order demanding to pay off the debt.
If the fact of a delay in salary is established, the employee has the right to quit at any time, without working out and warning the employer.
5. Appeal to the court. It is necessary to file a statement of claim with evidence of employment and the fact of violation of the terms of settlements: a contract and a work book. If it is satisfied, a writ of execution on the payment of the principal amount of the debt can be issued on the day the decision is made. The remainder - after its entry into force (Article 428 of the Code of Civil Procedure). Through the court, one can also claim compensation for moral damage in the amount of not more than 5 thousand rubles.
If the salary has been accrued but not paid, then you can apply to the magistrate court for an order. To do this, you will need to write a statement indicating the amount and duration of the delay. A court order must be issued within 5 days. In this case, the trial is not carried out. After a court order is issued, one copy is sent to the employer, the second to the employee. This paper is a writ of execution that can be transferred to the bailiff.
Application deadline
- In court and GIT - 3 months from the date of violation of the terms of settlements.
- If an employee continues to work in an enterprise and does not receive income, the period is extended.
- If the contract is terminated, the salary is calculated, but not paid, then the countdown starts from the day of dismissal.
Accounting: Compensation for Delayed Salaries
First of all, it is worth noting that in 1C there is no separate document for this operation. Therefore, you will have to register all transactions manually. In 1C: ZUP compensation for a delay in salary is formed according to this algorithm:
- in the document “З / П payable” you need to calculate the amount% taking into account the refinancing rate;
- based on the previous operation, create “Adjustment of accounting for personal income tax”;
- attach the external processing created in the previous step (via the "Fill" button).
After clicking on "Create Document", the processing window will appear. Next, you need to specify the accounts to form compensation for the delay in salary. Postings: DT 26.01 CT 72. At the last stage, you need to click on the button “Reflect in accounting” and post the document.
When accounting for compensation for salary delay using the algorithm described above, the balance on the account. 70 for employees who are charged interest will not match. To correct the situation, you can create a separate accrual at the rate of the Russian Federation and calculate it monthly. Although such an algorithm contradicts the rules and regulations of personnel records, there are no alternatives yet.
Option for Ukrainians
The Labor Code stipulates the responsibility of the employer for the delay in settlements with employees. So, in Art. 117 indicates that the employer must pay the employee all amounts due on the day of dismissal. If the deadlines were violated, then you need to accrue and issue the average employee salary for all days of delay. It is calculated for the previous two months worked.
Compensation for delayed payment of salaries is charged once directly on the day of settlement.This amount is not subject to indexation. It is calculated as the product of unpaid income for the month (after tax withholding) and the growth of the inflation index as a percentage. Consumer price index it is calculated by multiplying the relevant data of the State Statistics Committee for the entire period of delay. Formula:
C = RFP x (I (i) * I (i + 1) * ... * I (n) * 100 - 100): 100, where
C - compensation;
ЗП - “net” unpaid salary;
II, I (i + 1) - inflation index for the corresponding months.
Conclusion
For the work performed, the employee has the right to receive monetary compensation in full and within the time stipulated by the labor contract. If it is violated for any reason, the employer must pay compensation. The calculation procedure is prescribed in the Labor Code and the Civil Code of the Russian Federation. In addition, the law provides for criminal, administrative and material liability. The latter should be understood not only as compensation, but also disruptions in production due to the refusal of employees to fulfill their obligations. They have such a right after a delay in salary for a period of more than 15 days.
