Receiving remuneration is the employee's right, and its payment is the employer's responsibility. Wages 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 claim 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 be liable material, administrative and even criminal. According to legal regulations, wages must be calculated at least once every two weeks. The terms are set and spelled out in the collective agreement. If they were violated, even through no fault of the employer, compensation must be paid.
Punishment for violation of settlement terms
- A fine from one to fifty thousand rubles.
- Suspension of activity for 90 days.
- In case of repeated violation of the terms of payments, the employer faces disqualification for 1-3 years.
Compensation for delayed wages is calculated at a percentage of 1/300 of the discount rate of the Central Bank of the Russian Federation. In the same way payments are calculated upon dismissal of an employee, vacation pay. If this figure has been increased, this must be reflected in the documents. Reimbursement is charged for the entire unpaid amount, including premium and advance. It is tax deductible. If the day of payment of income coincides with a weekend or a holiday, then the accrual must be carried out the day before, so that later you do not incur additional material costs.
Calculation of compensation for delayed wages
If the deadline for the payment of income is postponed for two weeks or more, then the employee can notify the manager in writing that he will stop working until the full settlement of the debts. If the case goes to court, most likely, the employee's claim will be satisfied, even if the management of the organization is not guilty of violating the deadlines. The amount of compensation in this case will be determined on the basis of an employment contract and a court decision. After submitting the application, the employee may not go to work. But after the court makes a positive decision, he must start his duties. In this case, the absence will be regarded as a violation of labor discipline.
Most often, the employer simply pays off his debt and does not pay compensation. As a result, there is a violation of the rights of employees and a departure from the responsibility of managers. In this case, the employee can go to court. For violation of the deadlines, not only the manager will be fined, but also the head of the personnel department and the accountant. If the delay in wages lasts more than 2 months, then this may entail criminal liability with a fine of 120 thousand rubles. and imprisonment for up to seven years.
Formula
Compensation = Amount of debt * (% of CB refinancing / 300) * number of days of delay.
Compensation = Z / P * CD * (1/300) * ST, where
Z / P - the amount of debt;
КД - term;
ST is the refinancing rate (in unit shares).
Examples of
1. The employee received the advance payment (on the 20th) on time in the amount of 5 thousand rubles. The salary is 15 thousand rubles. The salary was paid only on the 23rd of the next month. According to the schedule, the maturity date is the 5th day. That is, there is a delay in wages. Compensation for a delay of 18 days must 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 needs to be paid.
The employee must get his hands on: 10,000 + 49.19 = 10,049.19 rubles.
2. The collective agreement stipulates that if there is a delay in wages, compensation for the delay is 0.06% daily. The calculation for July 2014, as well as the payment of income for August were made on September 17, 2014. The amount of debt is: for July - 30 thousand rubles, for August - 50 thousand rubles. That is, there is a delay in wages. Delay compensation should be calculated based on the timing:
- 30 thousand rubles. (salary for July) - 43 days. The violation starts on August 6th.
- 20 thousand rubles (advance payment for August) - 28 days (from August 21 to the date of actual payment - September 17).
- 30 thousand rubles. (salary for August) - 12 days (from 6 to 17 September).
Compensation amount:
(30 * 43 * 0.06% + 20 * 28 * 0.06% + 30 * 12 * 0.06%) * 1000 = 1326 rubles.
Material liability
If there is a delay in salary, compensation for the delay must be calculated based on the discount rate of the Central Bank in the amount of 1/300 (Article 236 of the Labor Code of the Russian Federation). This minimum can be increased by an employment contract. The first day is counted from the next after the due date according to the schedule. The latter is the date of the actual repayment of the debt.
If the refinancing% of the Central Bank of the Russian Federation has changed, then compensation for delayed wages is calculated separately for each rate. The organization must repay this amount together with overdue wages. This obligation arises for entrepreneurs regardless of the reasons for the delay. That is, in budgetary organizations, late receipt of funds is not a reason for refusing to accrue compensation.
Art. 142 of the Labor Code of the Russian Federation provides that if the deadline is postponed by two weeks (15 days) or more, the employee can stop work. The right to compensation will remain for him. Compensation for delayed wages is not subject to personal income tax (Article 217 of the Tax Code of the Russian Federation). You cannot stop work if:
1. Introduced a state of emergency.
2. An employee works in an organization that ensures the country's defense, or he 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 activities of the organization may also be suspended for 90 days. For repeated violations, an official may be disqualified for 3 years. The prosecution does not depend on the length of the delay. Even one day of non-payment of income may serve as the basis for writing an application to the relevant authorities.
Criminal liability
If the timing of settlements was violated due to the selfish goals of the employer, then he can be attracted under Art. 145.1 of the Criminal Code of the Russian Federation. In this case, the total delay in salary should exceed three months, and the complete non-payment of income - two.
What should an employee do?
- Contact your employer for compensation.
- Suspend work. To do this, you must notify the director and receive confirmation of the notification: the employer must sign one of the copies of the application. If he does not do this, then you can send the paper by mail with acknowledgment of receipt. Then the work can be stopped after the manager receives the letter. This downtime should be paid based on the employee's average earnings. But after receiving notification in writing about the readiness of the employer to pay compensation, you must start your duties.
3. Contact the CCC. The employee has the right to contact the employer and the trade union with a proposal to create a labor dispute commission. It should include an equal number of members from management and employees. In the CCC, you can write a statement about the 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 the employee. If the claims are justified, then the CCC makes an appropriate decision and notifies the parties to the conflict about it. After receiving the paper, the employer is obliged to pay off the debt to the employee within three days. If he does not agree with the decision, 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 you can proceed to more stringent measures. In the application submitted to the GIT, you must indicate your contact information, full name, location address, full name. the head, briefly and clearly state the essence of the complaint and the facts, note the period and the unpaid amount.
It is recommended to attach to the paper a copy of the contract, proof of non-payment, if any. The application can be submitted in person, sent by registered mail with notification or by e-mail. Documents are reviewed within 30 days. If, as a result of the audit, it is found that the deadlines for the payment of income have been violated, then the employer will receive an order demanding to pay off the debt.
If the fact of delay in wages is established, the employee has the right to resign at any time, without working off and warning the employer.
5. Going to court. You need to submit a statement of claim with proof of employment and the fact of violation of the terms of payments: a contract and a work book. If it is satisfied, the writ of execution on the payment of the principal amount of the debt can be written out on the day the decision is made. Remaining - after its entry into force (Art. 428 Code of Civil Procedure). You can also claim compensation for moral damage in the amount of not more than 5 thousand rubles through the court.
If the salary was accrued, but not paid, then you can apply to the magistrate's 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 proceedings are not carried out. After the court order is issued, one copy of it is sent to the employer, the second to the employee. This paper is a writ of execution that can be handed over to the bailiff.
Application deadline
- To court and GIT - 3 months from the date of violation of the terms of payments.
- If the employee continues to work outside the company and does not receive income, then the term is extended.
- If the contract is terminated, the salary is accrued, but not paid, then the countdown begins from the day of dismissal.
Accounting: compensation for delayed wages
First of all, it should be noted that 1C does not provide a separate document for this operation. Therefore, you will have to register all the transactions manually. In 1C: ZUP, compensation for delayed wages is formed according to the following algorithm:
- in the document "Salary for payment" you need to calculate the amount of% taking into account the refinancing rate;
- on the basis of the previous operation, create a "Adjustment of personal income tax accounting";
- 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 invoices so that compensation for delayed wages is formed. Postings: DT 26.01 KT 72. At the last stage, you need to click on the "Record in accounting" button and post the document.
When compensation for delayed wages is accounted for using the above algorithm, the balance on the account. 70 for employees who receive interest will not match. To remedy the situation, you can create a separate charge at the RF rate and calculate it monthly. Although such an algorithm contradicts the rules and regulations for maintaining personnel records, there are no alternatives yet.
Option for Ukrainians
The Labor Code stipulates the employer's responsibility for delaying settlements with employees. So, in Art. 117 states that the employer is obliged to pay the employee all amounts due on the day of dismissal. If the deadlines were violated, then you need to calculate and issue the employee's average salary for all days of delay. It is calculated for the previous two months worked.
Compensation for delayed salary payments is calculated once directly on the settlement day. This amount is not subject to indexation. It is calculated as the product of unpaid monthly income (after taxes) and the increase in the inflation index as a percentage. The consumer price index is calculated by multiplying the corresponding Goskomstat data for the entire delay period. Formula:
С = ЗП х (I (i) * I (i + 1) * ... * I (n) * 100 - 100): 100, where
С - compensation;
Salary - "net" unpaid salary;
Iі, I (і + 1) - inflation index for the corresponding months.
Output
For the work performed, the employee has the right to receive monetary remuneration in full and within the period provided for by the employment contract. If it is violated for any reason, the employer is obliged to pay compensation. The calculation procedure is spelled out 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 the payment of compensation, but also disruptions in production due to the refusal of employees to fulfill their obligations. They have this right after a delay in wages for more than 15 days.