That workers are fined. Legal side of penalties

| 21.09.2015

The fine system is actively used by Russian employers. How legal is it to fine employees for being late and for mistakes in their work? Russian legislation sets out in detail all cases of legal deductions from wages. By withholding part of the salary in all other cases, the employer is breaking the law. So, when can an employee be “punished with a ruble”? Let's try to figure it out.

Within the law

Legal deductions from wages can be divided into three categories. The first includes the so-called mandatory deductions- that is, what the employer is obliged to “take away” from you. Of course, not to your advantage.

Mandatory deductions include: personal income tax (13% of the white salary), as well as deductions on enforcement documents: writs of execution, court orders, judicial acts, orders of the bailiff, agreements on the payment of alimony, etc. Thus, alimony, fines, damages, and so on are withheld from employees.

• unearned advance payment issued on account of wages;
• unspent and timely unreturned travel allowances, as well as advances issued in connection with a transfer to another job in another location;
• overpaid wages;
• money for unworked vacation days when an employee is dismissed before the end of the working year for which he has already received annual paid leave.

At the same time, the employer has the right to withhold these funds from you only if you do not mind returning them. If you challenge the legality of such deductions, the employer will have no choice but to go to court.

But for deduction from your salary material damage, caused to the employer, your personal written statement of consent to repay the damage caused to the employer and repay the debt to the company through deductions from wages is required. If you refuse to write such a statement, then the employer will again have to go to court.

Outlaw

All other deductions from your salary are illegal. This is directly stated in Articles 22 and 137 of the Labor Code of the Russian Federation.

Legal penalties for workers are disciplinary action(Article 192 of the Labor Code). The employer has the right to reprimand you, reprimand you, and even fire you - but not fine you.

Unfortunately, “gray” salaries and a very opaque bonus system give the employer room for “maneuver.” On paper everything is fine. The employee received everything that was due to him under the official employment contract. In fact, employees of many organizations do not receive the lion's share of payments for lateness, too frequent smoking breaks, coffee in the workplace, dress code violations, personal conversations on the phone, work not done on time, and so on.

What to do in this case? If the employer has cut off the “gray” part of the salary, there is nothing you can do. The maximum is to write a statement to the prosecutor’s office, labor or tax office, stating that the employer pays “in an envelope.” But how long will you work there after that? There is only one way out: insist that all wages be paid officially. If they refuse you - and this is most likely the case - look for a new job.

But if we are talking about cutting the bonus, then you can fight. In many organizations, especially small ones, bonuses are paid quite chaotically. Most often - at the request of the owner.

Meanwhile, Article 129 of the Labor Code states that bonuses as a type of incentive payments are included in wages. Therefore, deductions from bonuses are just as illegal as from salaries. And cases of its payment or non-payment must be clearly stated in the local document of your organization (Article 135 of the Labor Code).

For example, it may be stated that the bonus is paid upon fulfillment of a certain plan, or for special merits, etc.

Life is a struggle

So, your bonus has been cut. What to do?

1. Inquire about the reason for the underpayment in the accounting department. Most likely, the accountant will refer to the management’s order.

2. Go to the boss. It is best to submit a written statement in which you must indicate the justification for the illegality of withholding part of your salary, i.e. TC articles about which we wrote above. When submitting an application, draw up the document in two copies and ask the secretary to put an acceptance mark on your copy, which will indicate registration number application, date, position, full name and signature of the accepting employee.

3. If management refuses to satisfy your demands, feel free to send a written complaint to the labor inspectorate at your place of work. In the complaint, indicate all the facts of deductions from wages, the inspectorate will check them. You can attach a copy of your statement to management with a note indicating its acceptance.

4. If the inspection does not reveal any violations - for example, the employer has agreed with the inspector, contact the prosecutor's office or the court.

No matter how much we are against it, fine systems are widely used by many employers. The reasons for “tightening the screws” are varied: fines can be applied for being late, for smoking in an unspecified place or, in principle, for the very fact of smoking, for failure to fulfill a sales plan, for violating the dress code, ignoring the instructions of the boss, leaving the workplace prematurely... By the way, Today, with a ruble they can punish anyone at work for anything. One gets the impression that employees of organizations where a fine system is used even have to ask to go to the toilet.

Whether to work in such conditions or not is everyone’s choice – it all depends on how much your pride allows you to do so. Another question is the legality of the application of such sanctions by the employer. But it just raises great doubts, because in labor legislation, despite the lobbying of the issue by the leaders of the “new formation” since the beginning of the 00s and the moment of the adoption of the Labor Code, Norms were never introduced allowing employees to be fined. Meanwhile, this stops few employers - financial demotivation systems are stable and work like clockwork. Careerist.ru figured out how it works and in what cases fines are really illegal.

Legal deductions

Let's start with the fact that the employer has the right to apply to the employee legally. These, however, are not penalties at all, but, to be correct, deductions from wages. So, in addition to taxes, the employer has the right to take deductions from your salary according to writs of execution and other enforcement documents sent to him by bailiffs - these are administrative fines, debts on utility bills and loans, alimony, and other debts. In addition, by virtue of Art. 137 of the Labor Code, the following can be deducted from an employee’s salary at the initiative of the employer:

• the amount of unpaid advance;
• unused travel allowances;
• amounts excessively accrued due to accounting errors;
• the amount of compensation for used vacation, which was received on account of the calendar year not yet worked;

It is interesting that this article does not allow the specified amounts to be withheld arbitrarily - the employee must agree to the withholding, otherwise they are possible only through the court.

The third category of legal deductions from wages is deductions related to direct actual damage caused to the employer in cases where a labor or collective agreement imposes financial responsibility on the employee or team. Under such damage, according to Art. 238 of the Labor Code refers to a decrease in the employer’s property, a deterioration in its condition, as well as the emergence of a need for expenses aimed at restoring property. Such damage, by virtue of Art. 248 of the Labor Code, is reimbursed by the employee or team by order of the employer, that is, directly by his order. Penalties in this case cannot exceed the average monthly salary, which constitutes the limits of the employee’s liability, according to Art. 241 TK.

Hit the premium

However, employees’ salaries rarely consist only of a fixed salary - in the vast majority of cases the lion's share salaries consist of bonuses, the payment of which is tied by labor or collective agreement to the achievement of specific indicators or compliance with labor discipline. Since labor legislation does not prohibit this, such bonuses become a real field for employer fines - by including them in your salary, the office management leaves itself “room for maneuver” with your salary. “A blow to the bonus” is quite legal from the point of view of the Labor Code and can be used for lateness, early leaving work, failure to meet production standards, failure to fulfill a plan, violation of deadlines established by the employer, etc.

Some offices use flexible systems of “deductions” from the bonus, depending on the degree of payment fulfillment, the total time of delays during the month, the number of clients accepted or contracts concluded, etc. Conditions for bonuses and deductions from bonuses can be standardized internally regulatory documents– such a system can well be called transparent. Another question is if such a system is not recorded anywhere... However, deductions from the premium, referred to as penalties, can be applied even when established requirements. The fact is that the bonus is always paid from profits: no profit - no bonus.

Fines as fines

Any other fines, referred to as an employment contract in reality as fines or material penalties of a disciplinary nature, are prohibited by law. Article 192 of the Labor Code defines an exhaustive list of disciplinary sanctions, the application of which to one’s own personnel is permissible. These include reprimand, reprimand and dismissal - the employer is not given the right to withhold funds worked by the employee . However, the widespread use of bonus systems, envelope schemes and the application of civil law to labor relations make punitive measures very common.

Thus, receiving a salary in an envelope gives the employer “all the cards”, because in this case its payment is not officially recorded anywhere, so it will not be possible to physically prove the fact of payment, and therefore the deduction of a fine. In this case, workers are absolutely not protected - the law remains on their side, but there is no evidence of the existence labor relations does not allow the employer to be held liable.

Cases of formalizing labor relations through the conclusion of civil contracts, for example, through the conclusion of a work contract or a contract for the provision of services, deserve special attention. Such relations are regulated not by the Labor Code, but by the Civil Code. But it does not prohibit the application of fines to the party to the contract that violates its obligations. So, if you, as the performer of the work, have not fulfilled any terms of the contract, and he himself has provided for penalties for this, do not doubt that the employer will do them. Another question is whether it is worth working for him.

Please note that if such collections are not stipulated in the contract, then the employer does not have the right to make them arbitrarily - in this case, deductions are permissible only through the court. Naturally, the employer will not comply this requirement and will fine you of his own free will, as is always the case, regardless of the conditions and under what agreement the cooperation takes place. In this case, the employee will have to contact law enforcement agencies.

What to do?

Having noticed an illegal deduction from your salary, you should not immediately blame the employer - perhaps the deductions are indeed legal. To do this, you should contact the company’s accounting department, perhaps even in writing- in order to receive a detailed written answer. If the deductions in it are not due to the requirements of the executive document, and the accounting department refers solely to the order of the manager, you should contact him. Moreover, preferably also with a written statement, which should reflect not only a request to explain the essence of the penalty, but also justify its illegality by referring to specific norms labor legislation . With absence independent opportunity To draw up such a statement correctly, contact a lawyer or a trade union.

Naturally, management is aware of the penalties that are made on its orders. And if the grounds for them do not comply with the law, you should not expect management to refer to them in an official response. In this case, the accounting department will receive an order to return the withheld funds, or the management will write a very vague dubious wording in the response, or even refuse to provide a response.

If the money has not been returned, the issue of its return is fundamental, and the employee is not afraid of losing his place of employment - he needs to boldly contact the labor inspectorate and the prosecutor's office. At the same time, in your application, do not forget to refer to the fact that you do not want your identity as an applicant to become known to the employer. Supervisory authorities will carry out the necessary checks, most likely reveal the fact of illegal deductions, issue the necessary orders for the return of the taken money and fine the employer. How far are you willing to go to protect your labor rights- depends solely on you and your determination.

But when deciding this question, remember that you should not expect anyone to respect your rights if you yourself are not able to protect them.

As the results of a study by the National Union of Personnel Officers (NSK) show, fines and other negative motivators are very popular among Russian employers. 15 percent of surveyed managers believe that it is impossible to manage people without punishment, especially in Russia, and 6 percent even believe that this The best way motivation. 79 percent were more restrained: they answered that punishment is useful, but in small doses, in exceptional cases and in relation to individual employees. Nevertheless, the data show: Russian employers, at least to some extent, apply various penalties to their employees.

According to the NSC, the vast majority of companies (88 percent) punish employees systematically or from time to time, 74 percent use fines sometimes, and 30 percent resort to public reprimand and moral pressure. 19 percent of companies prefer reprimands and educational conversations, and 17 percent practice immediate dismissal of the offender. Total control over employees' working time is also aimed at creating negative motivation. Many companies have strict internal rules. Thus, 63 percent of surveyed firms constantly or sometimes record the time of arrival and departure of employees, 29 percent monitor visits to Internet sites. Illustration Email 25 percent of firms do. Finally, 24 percent listen telephone conversations. It is clear that this NSC study consisted of a number of anonymous surveys, so it is useless to look for employers who will sincerely talk about how they monitor staff, fine them for every offense and fire them without paying wages. Let's try, with the help of lawyers, to understand what negative motivation is and how it operates today in Russian companies.

Legal side of penalties

When we talk about negative motivation, we primarily mean material fines and deductions. However, this particular measure has no right to exist by law.

As for the practice of using disciplinary sanctions in companies, there are several controversial issues. According to Alexander Grebelsky, any disciplinary sanction has a special procedure for implementation (Article 193 of the Labor Code of the Russian Federation). First, the offending employee is required to written explanation misconduct (being late, for example), which he may not give. Then, no later than one month from the moment of the offense, a direct disciplinary sanction is taken: a reprimand, a reprimand. After this, management issues an order and gives it to the employee for review. In addition to the lengthy and very “paper” procedure for disciplinary sanctions, there is another factor that makes this punishment not very attractive for employers. Any penalty can be challenged in court, and the court first of all takes into account the severity of the offense. Therefore, for example, a reprimand for improper dress code or being late will most likely simply be dismissed by the court.

However, practice shows that Russian leaders use reprimands quite often. Moreover, after two reprimands within a year, an employee can be fired by law. Workers in our country know little about their rights, which is why they rarely go to court. So it is very convenient for an employer to use reprimands as a threat of dismissal for being late, for taking a long lunch, or for having the “wrong” hairstyle.

Negative motivation in action

How is the practice of fines implemented? There are loopholes in any law. And, acting in accordance with Labor Code, employers still have the opportunity to punish employees financially.

An illustrative example is the system of fines in one well-known IT company. Depending on the offense (lateness, absenteeism, errors in work), an employee of this company is given from 0.1 point to ten points, and one point corresponds to 3 percent of the salary. In the worst case, the employee could be deprived of 30 percent of his income, which is equal to the full amount of bonus payments. The company is confident in the correctness of this approach. The HR director says: “Fear of punishment disciplines and motivates many employees. The only question is the size, adequacy and mechanism of application. If a specialist does not fulfill his functions, in particular, does not comply with the work schedule, he must be punished financially. I think normal people understand this." Now let's listen to the opposite side. “The constant threat of fines put a lot of pressure on the psyche. I understood that I needed to concentrate and work, otherwise I would be punished, but the very thought of this deprived me of the strength to concentrate. “I quit,” admits a former employee of this company.

A similar system exists in many banks.

According to Nina Grishkova, the bonus deduction system is formalized: all the grounds for deductions are set out in a special application, as well as in employment contracts, which are signed by bank specialists when hiring.

In Russian companies for a long time there was a hidden form of “keeping employees under a tight rein” - a complex income structure, when the salary is divided into parts: if you behaved well, you will receive a bonus, if you behaved poorly, you will not receive it. The problem was that assessing the quality of an employee’s “behavior” has always been the prerogative of immediate supervisor, which is essentially identical to the motivation under the feudal system. With the advent of international practice Russian market the situation began to change - the salary (both the main part and the bonus) became “white”, the system for calculating deductions and allowances became transparent. Under such conditions, it is simply impossible to fine an employee directly, and all the grounds and amounts of deductions from bonuses must be clearly stated in the charter.

Directly about the amounts of fines

Representatives of personnel departments prefer to remain silent about the specific amounts of deductions. Ordinary workers turn out to be much more talkative.

A specialist from Russian Standard Bank said that they are mainly fined for being late and unregulated breaks, and the amount of deductions from wages sometimes reaches up to 50 percent. “And even if you are not late and do not leave the workplace at the wrong time, the bosses are still looking for something to complain about. And even if it’s 5 percent, he fines it every month.”

A strict system of fines is sometimes used in the media. Thus, according to employees of the Internet portal “Cyril and Methodius”, fines sometimes “eat up” up to 70 percent of earnings. The main number of deductions is made for various disciplinary violations: lateness, absence from work at the appointed time, etc. Employees of the Pravda.Ru portal are also punished according to a similar scheme. “But media representatives are mostly creative people who are difficult to fit into any time frame,” says the editor of one metropolitan magazine. “It’s not surprising that many publications and portals are famous for their high staff turnover.”

Very good example“Penalty” motivation was given by Elena Tyutyunikova, Director of the HR Department of Iceberry Group of Companies. Only Elena believes that in this case we should not talk about fines, which only cause fear among employees, but about the so-called “underpayments” (akin to the bonus deduction system in banks).

Iceberry employees confirmed: “Active managers have no problems with money: bonuses sometimes increase salaries several times.”

A good example of bonus deduction works in the KPMG company: in some cases, employees of the organization are simply left without annual bonuses, which, as a rule, is not for them unexpected decision. In accordance with the bonus regulations in force in the company, each employee may be paid an annual bonus. The so-called Target Bonus meets the standard requirements: most of workers (up to 85-90 percent) easily reach the required level. The remaining 10-15 percent are distributed among themselves annual premiums increased to the maximum and reduced to zero. The criteria by which activities are assessed are specified in the regulations and brought to the attention of each employee. A specialist who demonstrates low quality of work periodically receives appropriate signals from his performance manager and has the time and opportunity to “correct” by the end of the year.

Strength limits

So what should you consider when introducing a fine system?

It should be said that many Russian managers are too carried away by the struggle for discipline and cease to sense the limits of the psychological strength of their employees. Beyond this line, people break down and stop believing that they can avoid punishment.

It is hardly possible to develop standard instructions on the fine system: everything depends on the industry in which the company operates, on the number of employees, on the organizational form and much more. However, general conclusions can be drawn based on the examples given. Firstly, deductions from salaries are better called deductions. Fines scare people, but not receiving bonus money stimulates and motivates them. Secondly, the deduction system should be as transparent and flexible as possible. Factory workers or service sector specialists can be fined for being late, and sales department managers can be fined for failure to produce volumes. Demotion of bonuses to managers is possible based on the results of the project or upon completion of a certain amount of work. Representatives of creative professions can only be fined for failure to comply with deadlines—the deadline for submitting assignments.

The employer periodically thinks about how to increase work efficiency personnel. Along with incentives, you can apply various penalties to employees. But not every employee is able to adequately respond to sanctions and survive the imposition of a fine - he may quit or even file a complaint against you. Let's figure out in what cases you have the right to fine your employees.

Is it possible to fine employees?

It is important to remember that imposing a fine is illegal. If employees perform ineffectively, disciplinary action may be taken against them. According to Art. 192 of the Labor Code of the Russian Federation, an employee can be deprived of a bonus, given a reprimand, a reprimand, and ultimately fired, but cannot be fined.

Before the employer applies a disciplinary sanction, the employee must write an explanatory note within 2 working days. If there is no explanation, then the penalty will be applied 1 month from the moment of the offense, but no later than 6 months. If the offense was determined through an audit or audit, then no later than 2 years from the date of commission.

One offense – one disciplinary sanction (Article 193 of the Labor Code of the Russian Federation).

It is important to remember that imposing a fine is illegal. You can deprive an employee of a bonus, make a reprimand, reprimand, and ultimately fire him, but you cannot fine him.

Employers also resort to using motivating punishments. The process of “fining” takes on a different form.

An employee's salary consists of salary and bonus. The employer may deduct a certain amount from the bonus portion for any violations specified in the contract.

If a fine was imposed

Any fines in Russia are prohibited by the Labor Code. But some entrepreneurs point out employment contract only a fixed part of the salary and then collect a fine from it. In this case, the person is deprived of part of his salary without reason and, in connection with this, can file an application with the labor inspectorate with a complaint against the employer. If you have fined an employee for a long time, then he may file an application with the prosecutor’s office due to non-payment of part of the salary, and a criminal case may be initiated against you. But to do this, the employee will need to prove the fact of the fine.

Any paper that confirms that the employee was unreasonably reduced wages, is proof that you fined him.

If you have fined an employee for a long time, then he may file an application with the prosecutor’s office due to non-payment of part of the salary, and a criminal case may be initiated against you.

It is worth noting that if an employee receives a salary “in an envelope,” then he will not be able to prove the imposition of a fine on him. But you, as an employer, should not abuse this.

Fines for workers are not provided for by law. But other methods are available to employers to optimize the work of their staff. First, you need to understand the reasons for the employee’s misconduct, and only then impose sanctions on him. By sanctions we mean reprimand, reprimand, or, as a last resort, dismissal.

Many companies have introduced a system of fines for violation of labor discipline (lateness, absenteeism, failure to fulfill sales plans, etc.) Is this legal from a legal point of view?

The concept of “fine” does not exist in the Labor Code. Even if the employment contract regulating the relationship between employer and employee contains a clause on recovery from the employee Money for being late, it is not legal, since it is contrary to the law.Employers who fine their employees for being late or early care from work, they risk being fined themselves.
According to the Labor Code, for failure to perform or improper performance by an employee labor responsibilities, the employer has the right to apply disciplinary sanctions: reprimand, reprimand or dismissal (. Art. 192 Labor Code of the Russian Federation) If Labour Inspectorate discovers that the employer is fining for lateness, the company may be held administratively liable.
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Article 5.27. Code of Administrative Offences. Violation of labor and labor protection laws.
1. Violation of labor and labor protection legislation -entails the imposition of an administrative finefor officials in the amount of one thousand to five thousand rubles; on persons carrying out entrepreneurial activity without forming a legal entity - from one thousand to five thousand rubles or administrative suspension of activities for a period of up to ninety days;on legal entities- from thirty thousand to fifty thousand rubles or administrativesuspension of activities for up to ninety days.
2. Violation of labor and labor protection legislation official previously subjected to administrative punishment for a similar administrative offense - entails disqualification for a period of one to three years.
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The Labor Code does not provide for the dismissal of an employee for systematically being late for work. However, employee work schedules and other issues related to labor discipline, regulate internal documents companies - Operating rules and employment contracts - which in one way or another refer to the Labor Code. Therefore, if an employee is guilty, he cannot avoid punishment.
Typically, being late is considered a category disciplinary offenses, the last resort measure of which is dismissal. But the employer does not have the right to refuse an employee if he came to the office at the wrong time only once. However, an employee can be late for work no more than two times, since on the third he risks being fired.
The Labor Code does not contain a list of reasons why employees can get away with being late for work. Possible reasons for being late are sometimes fixed in the company’s internal regulations, but the concept of “ a respectful reason"Very vague. For example, if your neighbors flooded you, traffic jams, etc. - are not considered respectful by many employers. However, if you can provide an explanatory note with a supporting document proving that you were delayed through no fault of your own, then perhaps the employer will not issue a warning or reprimand.Supporting documents can be a certificate from the railway station about the train delay, sick leave. And if they do decide to fire you, these documents will help you appeal the employer’s decision in court.
Despite all of the above, it should be remembered that the employer can use other levers of influence. For example, many companies have a “black” salary, and since it is not reflected in the employment contract, the employee can only be paid the salary, while depriving him of the “black” part. Also, the employer can deprive the employee of a bonus, but in this case, the company must properly draw up local documents regulating the payment of bonuses, financial assistance and bonuses. Such an act may be a local instruction on bonuses.
As a result, the fine is unlawful. But there is a possibility of deprivation of the bonus, provided that the local acts, or not paying the “black” part of the salary.