How to deduct the amount of material damage from an employee’s salary. How to properly recover material damage from an employee

When paying wages to an employee, you should always remember not only its size, but also about correctly made deductions. We list the basic rules that any employer should know when withholding employee salaries on their own initiative.

All deductions can be classified as follows:

• main (personal income tax, according to writs of execution);
• at the initiative of the employer (for unpaid advance payment, material damage, etc.);
• at the initiative of the employee (at the request of the employee).

This classification is presented in the order in which deductions should be made. In the article we will focus on deductions made at the initiative of the employer. In order to avoid mistakes and not violate labor laws, we will look at the basic rules that an employer must know and follow.

Rule 1. Deductions from wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws

According to Art. 137 Labor Code of the Russian Federation, deductions from wages To repay the employee's debt to the employer, the following may be done:

• to reimburse an unpaid advance issued to an employee on account of wages;
• to repay the unspent and not timely returned advance issued in connection with business trip or transfer to work in another area, as well as in other cases;
• to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime;
• when an employee is dismissed before the end of the working year for which he has already received annual paid leave - for unworked vacation days.

In this case, there are restrictions - deductions for compensation of unworked vacation days are not made if the employee is dismissed for the following reasons:

1. the employee’s refusal to transfer to another job, required for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (clause 8, part 1, article 77 of the Labor Code of the Russian Federation);
2. liquidation or reduction of personnel or staff (clause 1, 2, part 1, article 81 of the Labor Code of the Russian Federation);
3. change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81 of the Labor Code of the Russian Federation);
4. employee call to military service or sending him to an alternative civil service replacing it (clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
5. reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
6. recognition of the employee as disabled (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
7. death of an employee (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
8. the occurrence of emergency circumstances interfering with the implementation labor activity(clause 7, part 1, article 83 of the Labor Code of the Russian Federation).

The list of grounds allowing the employer to make deductions on his own initiative is closed and not subject to broad interpretation. For example, it is impossible to withhold from an employee’s salary any amounts overpaid to him due to an incorrect interpretation of regulatory legal acts.

Despite the fact that there are grounds for deduction, the employer should obtain the employee’s consent to it. If the latter is against it, even if the grounds are specified in Art. 137 of the Labor Code of the Russian Federation, then it is unlawful to make a deduction. The employer will have to resolve this issue in court. An exception when the employee’s consent is not required is the withholding of amounts for unworked vacation days.

Labor legislation also allows the employer to certain cases withhold from the employee’s wages material damage caused to the organization (Article 238 of the Labor Code of the Russian Federation).

Rule 2. The employer can make deductions only within the time limits specified by labor legislation

We discussed above cases when an employer can make deductions from an employee’s salary. Please note that each of these has limitations.

In Table 1 we list the deadlines that the employer must comply with.

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Please note: if the employer does not formalize and make a deduction within a month on the basis of Art. 137 of the Labor Code of the Russian Federation (return of advance payment, repayment of debt, incorrectly calculated payments), then he will have to resolve the issue of withholding through the court.

In the case of material damage there are also restrictions: if the amount of damage exceeds a month average earnings employee and the month period has expired, then deduction can only be made on the basis of a court decision.

Rule 3. The amounts of deductions established by law must be observed.

According to Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages cannot exceed 20%. Also, one should not forget about the norms of Part 1 of Art. 99 of the Labor Code of the Russian Federation: the amount of deduction from wages is calculated from the amount remaining after withholding taxes. Let's look at this issue using an example, calculating the maximum amount that can be withheld from wages for a month.

Example 1

Calculation of the maximum amount that can be withheld per month

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Manager Klimov A.N. On August 10, an advance was issued for travel expenses in the amount of 9,000 rubles. According to the advance report, which was submitted to the accounting department on August 14, the specified employee did not spend 5,000 rubles. This amount Klimov was not returned. On August 25, the employer issued an order to withhold the amount of the unreturned advance from his wages.

The accountant accrued wages to the specified employee for August in the amount of 12,900 rubles. The employee agrees to the retention.

Let’s determine the maximum amount that can be withheld from an employee’s salary for August due to an unreturned advance:

1. Let's calculate the amount of personal income tax: 12,900 × 13% = 1,677 rubles.
2. Let's set the maximum deduction amount: (12,900 - 1,677) × 20% = 2,244 rubles. 60 kopecks

That is, for August from the salary of A.N. Klimov. The maximum you can withhold is an unreturned advance payment in the amount of no more than 2,244 rubles. 60 kopecks.

The remaining amount is 2755 rubles. 40 kopecks (5000 - 2224.6) will be withheld in the following months.

What if an employee quits and the final salary is not enough to fully cover the unreturned advance? What to do in this situation?

In this case, two options are possible:

1. Agree with the employee on the voluntary return of the remaining amount of the unspent advance.
2. Go to court if the employee refuses to voluntarily reimburse the unrefunded amounts.

Please note: Withholding limits may be increased.

According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the total amount of all deductions for each payment of wages in cases provided for by federal laws cannot exceed 50% of the wages due to the employee.

So, maximum size withholding equal to 50% will be the case if the amount under the writ of execution should be withheld from the employee at the same time, say, to recover from the employee in compensation for an outstanding loan, as well as an unreturned advance issued for travel expenses.

Let's look at an example of the procedure for determining the maximum amount for withholding on several grounds: an advance payment issued for travel expenses that was not returned on time, and collection under a writ of execution.

Example 2

Calculation of the maximum size when withholding on several grounds

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Auditor A.P. Kochkin On August 5, an advance was issued for travel expenses in the amount of 8,000 rubles. According to the advance report, which was submitted to the accounting department on August 10, the specified employee did not spend 4,000 rubles. This amount is given to A.P. Kochkin. was not returned.

Also on August 10, the organization received a writ of execution for recovery from Kochkin in compensation for the loan that was not repaid on time (the amount of compensation is 5,000 rubles).

The accountant accrued wages to the specified employee for August in the amount of 15,500 rubles. The employee agrees to the retention.

Let’s determine the maximum amount that can be withheld from wages for August:

1. Calculate the amount of personal income tax: 15,500 × 13% = 2015 rubles.

2. We will set a maximum amount of deductions for August. According to Part 1 of Art. 138 of the Labor Code of the Russian Federation, the maximum amount of deductions in this case cannot exceed 50%: (15,500 - - 2015) × 50% = 6,742 rubles. 50 kopecks

From the specified amount, at the initiative of the employer (for an advance not returned on time), the following can be withheld: 15,500 × 20% = 3,100 rubles.

3. We determine the amount that can be legally withheld from the employee’s salary for August:

6742.5 - 5000 = 1742.5 rub. (less than 3100 rub.);

4000 - 1742.5 = 2257 rub. 50 kopecks - the specified amount of an advance not returned on time can be withheld only in the next month.

That is, the following amounts can be legally withheld from wages for August:

• the amount of recovery under the writ of execution is 5,000 rubles;
• advance payment issued for travel expenses not returned on time - 1,742 rubles. 50 kopecks

The limit increases to 70% (Part 3 of Article 138 of the Labor Code of the Russian Federation):

• while serving correctional labor;
• when collecting alimony for minor children;
• when compensating for harm caused by an employee to the health of another person;
• when compensating for damage to persons who suffered damage due to the death of the breadwinner;
• when compensating for damage caused by a crime.

Rule 4: Deductions must be properly documented.

In order to withhold amounts from an employee’s salary on the grounds specified in Art. 137 of the Labor Code of the Russian Federation, the employer should issue an order about this. There is no form of order established by law, so the employer develops the form of the order independently. Orders should be issued within a month from the date of expiration of the period established for the return of unpaid advances, amounts calculated in error, and repayment of debts.

When deducting compensation for unworked vacation days, an order is not required to be issued.

If we are talking about withholding amounts to pay off material damage, then you should also adhere to month period. That is, the order is issued no later than one month from the date the employer has established the amount of damage caused by the employee (see Example 3).

Before this, as we have already said, the employer should obtain the employee’s consent to withhold (with the exception of reimbursement of amounts for unworked vacation days). To record the receipt of consent, several options can be proposed:

1. draw up a notice of withholding, which includes a column indicating the employee’s consent;
2. ask the employee to draw up a statement that he does not object to the deduction (Example 4);
3. provide in the order a note indicating consent to withholding.

Example 3

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Example 4

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In conclusion, we would like to remind you that for unjustified deductions, an organization can be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Today we will give you step by step instructions, how to recover material damage from an employee without going to court, and we will also tell you about cases when it will not be possible to recover material damage to an enterprise from an employee.

In the course of the activities of any organization, cases may arise when it suffers material losses in the event of damage or loss of property, or as a result of a lost contract. This almost always happens due to the fault of the employees. And if the damage is significant, the employer’s desire to compensate for the damage caused is quite understandable. But, unfortunately, this is not always possible, and if possible, then not to the full extent.

If the administration of an enterprise intends to punish a guilty employee, then it is imperative that everything is done correctly, otherwise, even if the employer is right, the employee will easily challenge the decision in court.

For any punishment of an employee, be it a financial penalty or disciplinary punishment labor legislation provides for a certain procedure.

How to properly file a claim for material damage from an employee

Let us consider the procedure for recovering material damage from a guilty employee step by step.

• Step 1. It is necessary to determine the material damage caused in general terms and the presumably guilty employee. This is usually done using a memo from immediate supervisor an employee or a person responsible for lost or damaged material assets, if the damage was not caused by himself.
• Step 2. A commission is being created to conduct an internal investigation. It is advisable to include in the commission an accountant of the material table and an employee who can assess the damage caused in the event of equipment failure. If there is no such employee in the organization, then you can invite an outside expert to participate in the commission. Or, another option, the commission requests expert opinion and includes it in the results of the investigation. During the investigation, members of the commission determine exactly what is missing or damaged and withdraw the exact amount in monetary terms.
• Step 3. The commission requests an explanation from the guilty employee. Make it better in in writing and hand it to the employee against signature. This step is carried out in the same way as when conducting investigations regarding the imposition of disciplinary sanctions.
• Step 4. The commission examines all documents and makes a conclusion about the degree of guilt of the employee and the possibility of recovering damages from him. This cannot be done in all cases; they will be discussed in more detail below.
• Step 5. An order is issued to withhold funds from the employee in accordance with the conclusion made. If it is impossible to recover damages from the employee, then it is not necessary to issue an order.
• Step 6. Transferring the order to the accounting department for the reasons for deducting amounts of money from the employee’s salary.

What to consider when conducting an investigation and calculating the amount of damage

When conducting an internal investigation and drawing up a conclusion, you need to remember the following nuances:

1. The amount of damage caused is calculated based on the residual value of the equipment or purchased goods. That is, if an employee breaks a completely written off computer, nothing can be recovered from him. Also, if he has lost material assets, then the amount is calculated based on the purchase price, without taking into account the markup.
2. Simultaneously with the recovery of material damage, the employee may be subject to disciplinary liability in the form of a reprimand or reprimand.
3. Lost profits cannot be included in the amount of material damage. That is, if due to the fault of the employee the contract was not concluded, its amount will not be considered material damage. In this case, the only way to punish the employee is disciplinary action.

When nothing can be withheld from an employee

There are four cases when an employer does not have the right to withhold material damage from an employee. They are enshrined in law.

1. Actions of force majeure. This includes natural disasters and man-made disasters, during which the employee was unable to preserve property and material assets.
2. Conditions of normal economic risk presuppose that the employee performs his official duties and causes damage in the course of them. For example, when introducing new technological processes and work methods.
3. Causing damage out of extreme necessity and for self-defense. For example, when trying to detain a thief, an employee dropped cash machine and broke it.
4. Lack of conditions necessary for storing material assets due to the fault of the employer. For example, the employer did not provide the cashier of the enterprise with a safe where material assets can be kept, or in warehouse There were no bars on the windows and no alarm system.

If during the inspection at least one of the above circumstances is revealed, the employer is deprived of the right to withhold material damage from the employee, at least partially.

When can material damage be withheld in full?

The full cost of damage caused by an employee can be withheld in following cases:

1. The employee is the head of the enterprise. Either the chief accountant or deputy manager, but provided that an agreement on full financial responsibility is concluded with them.
2. Any other employee with whom an agreement on full financial responsibility has been concluded and who receives material assets according to documents. This primarily includes the storekeeper, cashier, and salesperson.
3. An employee who received material assets one-time, but with paperwork. For example, he was given cash to the report.
4. When causing material damage, the employee was in a state of alcohol intoxication.
5. The employee caused damage to the property of the enterprise not during the performance of official duties. For example, a driver used a company car after finishing work and crashed it.
6. The employee caused the damage as a result of malicious intent.
7. The employee was convicted of damaging property.
8. An employee who did not have the right to disclose information protected by law.

When damage can only be partially contained

If the conditions for full financial liability cannot be applied to the employee, but it is also impossible to relieve him of it, then the damage caused will be partially withheld from him, in the amount of average earnings.

Note! The damage is not deducted in the amount of the salary for the current month, but rather the average earnings for the year are calculated. With some forms of remuneration, these can be completely different amounts.

Other nuances when withholding material damage

• Even if the employer does not have the legal ability to withhold from the employee the full amount of damage caused, the employee can agree to reimburse the entire amount.
• More than 20% cannot be withheld from an employee’s earnings. In some cases, the amount can reach 50%, but this decision can only be made by a court.
• If an employee quits or quits during the investigation, it will be possible to recover damages in full only through the court. Of the payments due to him upon dismissal, no more than 20% can be withheld.

Only if the entire procedure for deducting the amount of damage caused from the employee is strictly followed and there is no violation of the law, the employer can be sure that the employee will not be able to challenge the deduction in court.

You can ask our on-duty labor law lawyer your questions free of charge.

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Question

The Employer wants to withhold part of the amount from the Employee’s official salary due to the latter causing damage. We need information about the retention procedure and the necessary documents.

Answer

For information on how to withhold the amount of material damage, see the justification.

Guest, meet - !

For sample documents, see separate files in the attachment.

The rationale for this position is in the materials of the Personnel System.

« How to determine the amount of damage caused by an employee of an organization

Before deciding to recover damages from an employee, the employer should conduct an investigation to determine the amount of the loss and the reasons for its occurrence. To check, create a special commission (). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables. Indeed, in these cases, an inventory must be carried out with the preparation of matching statements, and for this an inventory commission must be created (, Guidelines, approved , Regulations approved ). The legitimacy of this position is confirmed by judicial practice (see, for example,).

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

The fact that an employee caused damage to the organization’s property should be recorded in a separate act. Current legislation does not oblige the employer to draw up such an act. Nevertheless, a timely document will allow you to record the fact of damage, establish an approximate or exact amount and subsequently confirm it. The form of the act is not fixed regulatory documents, so it can be composed in .

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.) in force in the area. In this case, the damage cannot be valued below the value of the property according to accounting data (including wear and tear). This procedure is established by the Labor Code of the Russian Federation.

Any direct effective damage caused to the employer can be recovered from the guilty employee. Namely:1

• amount of material damage;
• expenses for acquiring or restoring property (for example, repairs);
• expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident to the extent not covered by insurance compensation).

This is stated in the Labor Code of the Russian Federation.

After determining the composition and amount of damage, collect from the employee written explanations about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by Article 247 of the Labor Code of the Russian Federation.1

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.2

Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.1

If the amount of damage exceeds a month’s salary or the monthly deadline for issuing a penalty has been missed, then compensation for damage is possible either voluntarily (with the consent of the employee) or through the court.

An employee can voluntarily compensate for the damage either fully or partially. In this case, by agreement of the parties, compensation for damage by installments is allowed. In this case, the employee must provide the employer with a written undertaking for damages indicating specific payment terms. If in the future the employee decides to resign and refuses to compensate the remaining amount of damage, then the outstanding debt can be collected in the general manner - through the court.1

It should be noted that with the consent of the employer, the employee can compensate for damage not only with money: he can also transfer equivalent property as repayment or undertake to correct the damaged.

Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions (inaction) that caused the damage.

This procedure is established by the Labor Code of the Russian Federation.

Make deductions taking into account the established restrictions.

Question from practice: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure for calculating it is established based on the average daily (hourly) earnings (). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee's income should not exceed his average monthly earnings (). In this case, the average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (, clause and Regulations approved

See what conditions courts most often evaluate differently. Include safe wording of such conditions in the contract. Use positive practice to persuade the counterparty to include a condition in the contract, and negative practice to persuade the counterparty to refuse the condition.

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Fresh positions of courts on controversial issues of collection of legal costs in one review. The problem is that many details are still not spelled out in the law. Therefore, in controversial cases, rely on judicial practice.

Send a notification to your cell phone, by e-mail or by post.

As of: 04/02/2007
Magazine: Personnel Directory
Year: 2007
Author: Bondarenko Elvira Nikolaevna
Topic: Limited financial liability of the employee, Full financial liability
Category: HR practice

As you know, one of the goals of labor legislation is to protect the rights and interests of employees and employers (Part 1, Article 1 of the Labor Code of the Russian Federation). The employee's fulfillment of his duties under the employment contract guarantees the protection of the employer's rights, including property rights. An employee who causes damage to the employer's property (including the property of third parties owned by the employer, if he is responsible for the safety of this property) or the property of other employees is obliged to compensate it. This obligation is named in Art. 21 of the Labor Code of the Russian Federation is among the main ones and follows from Art. 8 of the Constitution of the Russian Federation, which provides for equal protection of all forms of property. Mutual financial liability of the parties employment contract dedicated to Art. 232-250 Labor Code of the Russian Federation.

By establishing such a seemingly strict duty of the employee to the employer, especially taking into account their property inequality, the legislator, however, considered it possible in a certain sense to alleviate the situation of the employee, despite the offense he committed. Yes, according to general rule, the employee is obliged to compensate the employer only for direct actual damage. Lost income (lost profits) is not recovered from him (Article 238 of the Labor Code of the Russian Federation). There are also a number of employee-friendly provisions.

The main type of financial liability of an employee is limited, within the limits of average monthly earnings (Article 241 of the Labor Code of the Russian Federation); in Art. 239 of the Labor Code of the Russian Federation establishes circumstances that exclude his financial liability; the employer, with some exceptions, has the right to refuse to recover damages from the employee (Article 240 of the Labor Code of the Russian Federation).

If the employee nevertheless bears full financial responsibility, then only in cases specified by law and, again, as a rule, for direct actual damage. There are other circumstances in the legislation, the consideration of which should mitigate the employee’s obligation to compensate for the damage caused to him.

Nevertheless, property damage caused to the employer, be that as it may, must be compensated. First of all, the employer must determine the amount of damage caused by the employee and establish the reasons for its occurrence (Articles 246 and 247 of the Labor Code of the Russian Federation)* This is his responsibility, failure to comply with which excludes the possibility of compensation for damage.

Conducting an inspection - necessary condition employee's financial liability. In addition, the employer is obliged to request an explanation from the employee in writing. This is done in order to find out the cause of the damage and thereby determine the employee’s guilt. If the employee avoids giving an explanation, a corresponding act is drawn up.

compensation options

Once the size and cause of the damage are clarified, it is necessary to determine how it will be compensated.

Several procedures have been established for compensation of damages by an employee:
- when the fact of causing damage is recognized by him and he is ready to compensate it voluntarily;
- when an employee does not agree with the fact of causing damage or its size and appeals to the labor dispute resolution body - judicial (disputed) procedure;
- when damages are recovered by the employer from the employee regardless of the latter’s consent in an indisputable manner. In this case, the employee is also not deprived of the right to appeal the employer’s decision, but this is already post factum.

Voluntary compensation by the employee for damage- full or partial - possible only with the consent of the employer. The employee either, with the consent of the employer, corrects the damaged property, or transfers an equivalent one, or deposits an adequate amount of money into the employer’s cash register. Article 248 of the Labor Code of the Russian Federation allows compensation for damage by installments, but only by agreement with the employer. In this case, the employee undertakes in writing to pay the agreed amounts of money at certain intervals, repaying the debt by the deadline agreed upon by the parties. If the employee does not fulfill his obligation or resigns, the debt is collected in court.

The procedure for collecting damages from the guilty employee by order of the employer provided for in Art. 248 Labor Code of the Russian Federation. When withholding certain amounts from an employee's salary, the employer must comply with certain conditions.

First of all, damages not exceeding the employee’s average earnings can be recovered in this manner. That is, if the employee bears limited financial liability, this is the procedure that applies, unless, of course, the damage is compensated voluntarily. But even in the case of full financial liability, if the amount of damage caused is not more than average earnings, it can be recovered under Art. 248 Labor Code of the Russian Federation. Thus, to determine the procedure for compensation by an employee for damages What matters is not the type of liability, but the amount of damage caused.

Another condition is the collection period established by law. The order must be made no later than one month from the date of final determination by the employer of the amount of damage.

Finally, an order to withhold damages is issued in relation to an employee who continues to work for the employer. The fact is that the very fact of causing damage is not grounds for termination of an employment contract at the initiative of the employer; For this, a decision of the competent authority is also needed (see, for example, subparagraph “d”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation). At the same time, the employee who caused the damage has the right to resign for at will. Then the employer goes to court to recover damages.

If the employer fails to comply with the conditions for collecting damages (namely, if the monthly period during which a deduction order can be made is violated, or an amount exceeding the average monthly earnings is collected), the employee has the right to go to court, and, as follows from Part 2 Art. 248 of the Labor Code of the Russian Federation, bypassing the commission on labor disputes.

Note!

Average earnings are calculated according to the rules of Art. 139 of the Labor Code of the Russian Federation as amended by Federal Law dated June 30, 2006 No. 90-FZ. To the extent that does not contradict the Labor Code of the Russian Federation, the Regulations on the specifics of the procedure for calculating average wages, approved. Decree of the Government of the Russian Federation dated April 11, 2003 No. 213

Collection cannot be applied to sums of money paid:
1) for compensation for harm caused to health, as well as for compensation for damage to persons who suffered damage as a result of the death of the breadwinner;
2) persons who received injuries (wounds, injuries, concussions) during the performance of their official duties, and members of their families in the event of death of these persons;
3) in connection with the birth of a child; mothers of many children; single father or mother; for the maintenance of minor children during the search for their parents; pensioners and disabled people of group I to care for them; victims of extra food, sanatorium treatment, prosthetics and costs of caring for them in the event of harm to health; for alimony obligations;
4) for working with harmful conditions labor or in extreme situations, as well as citizens exposed to radiation due to disasters or accidents at nuclear power plants, and in other cases, established by law RF;
5) organization in connection with the birth of a child, the death of relatives, the registration of marriage, as well as severance pay, paid upon dismissal of an employee (Article 69 of the Federal Law of July 21, 1997 No. 119-FZ “On Enforcement Proceedings”; hereinafter referred to as the Law on Enforcement Proceedings).

Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability (Part 6 of Article 248 of the Labor Code of the Russian Federation). Thus, a combination of sanctions is possible.

Note!

It is possible to simultaneously bring the employee to material and disciplinary or (criminal or administrative) liability

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to recover damages from the employee. However, the owner of the organization’s property may limit this right in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws, other regulatory legal acts of constituent entities of the Russian Federation, regulatory legal acts of bodies local government, constituent documents organizations. This is also stated in the resolution of the Plenum Supreme Court RF dated November 16, 2006 No. 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer.”

The Labor Code of the Russian Federation provides for general order when it is possible to deduct from an employee’s salary by order of the employer - on what grounds and to what extent (Articles 137 and 138). The establishment of such a procedure is the most important guarantee for the remuneration of an employee (Article 130 of the Labor Code of the Russian Federation) and, in general, the most important guarantee of his labor rights

. undisputed order of deduction from wages

The employee’s obligations, for which deduction from his salary is possible, can be divided into the following:
1) obligations to the state (for example, clause 4 of Article 226 of the Tax Code of the Russian Federation: withholding by the tax agent of the amount of income tax individuals; Art. 43 of the Criminal Executive Code of the Russian Federation: deduction from the earnings of a person sentenced to correctional labor of amounts established by a court verdict);
2) obligations to third parties: compensation for harm caused to the health of another person, compensation for harm to persons who suffered damage in connection with the death of the breadwinner, compensation for damage caused by a crime (Article 138 of the Labor Code of the Russian Federation), as well as withholding alimony on the basis of a writ of execution or a notarized agreement on the payment of alimony (Article 109 of the Family Code of the Russian Federation). In these cases, deductions are made indisputably.

An indisputable order is provided for the retention of damage caused, but, as mentioned above, with certain conditions. In the case of reimbursement of an unearned advance payment issued to an employee on account of wages (paragraph 1, part 2, article 137 of the Labor Code of the Russian Federation), no retention period is established. What is considered the debt repayment period (advance repayment) in this case? After all, it is not supposed to return this advance, so to speak, in kind, but to work it off.

The deadline in this case is determined by the situation itself: the employee is given an advance on his salary, say, for the current month. A month has been worked, which means the debt has been repaid. Therefore, the deadline for making deductions must be counted from the end of the month for which the salary will be calculated.

True, it is not very clear how the employer should find out that the employee does not dispute the grounds and amounts of deductions. The ideal situation is when the employee knows that the employer is going to withhold any amounts from his salary, and does not dispute (or dispute) this fact. However, in most cases, the employee learns about the fact and amount of deduction already when it is made.

Let us note that the provision of Art. 137 of the Labor Code of the Russian Federation is interpreted by some experts as a requirement of the employer to certainly notify the employee that a deduction will be made on such and such a basis and in such and such an amount (i.e., in essence, ask his consent).

Absence in Art. 137 of the Labor Code of the Russian Federation instructions on the need to obtain written consent The employee's law suggests that the employee is considered not to challenge the withholding until he notifies the employer about it.

recovery of damages under certain conditions

In the following cases, although deductions are made, they are subject to a one-month period and provided that the employee does not dispute their basis and amount:
1) to repay an unspent and not returned timely advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases. If an employee fails to report for a business trip in a timely manner within three days, the accountable amounts may be withheld from him. However, if the employee repays the debt (even in violation of the deadline), the employer is obliged to reimburse them;
2) to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (Part 3 of Article 155 of the Labor Code of the Russian Federation) or downtime (Part 3 Article 157 of the Labor Code of the Russian Federation). By counting we mean an arithmetic error;
3) upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deduction for these days is not made if the employee is dismissed on the grounds provided for in paragraph 8 of Part 1 of Art. 77 or paragraphs. 1, 2 or 4 hours. 1 tbsp. 81, pp. 1, 2, 5, 6 and 7 tbsp. 83 Labor Code of the Russian Federation. The employer’s right to go to court in this case is not contained either by the Labor Code of the Russian Federation (Article 391) or by the Rules on regular and additional holidays(clause 2), approved by the NKT of the USSR on April 30, 1930 No. 169 and valid to the extent that does not contradict the Labor Code of the Russian Federation. At the same time, in paragraph 1 of Art. 3 of the Code of Civil Procedure of the Russian Federation states that an interested person has the right to go to court for the protection of violated or disputed rights, freedoms or legitimate interests. Finally, Art. 8 of the Constitution of the Russian Federation establishes equal protection of all forms of property;
4) if the wages were overpaid to the employee in connection with his unlawful actions established by the court. It does not matter whether the employee is subject to any type of legal liability.

salary deduction limits

Article 138 of the Labor Code of the Russian Federation establishes the limits of deduction from wages.

The total amount of all deductions for each payment of wages cannot exceed 20%, and in cases provided for by federal laws - 50% of wages due to the employee.

Note!

When deducting from wages under several executive documents, the employee must in any case retain 50% of the wages

According to Art. 66 of the Law on Enforcement Proceedings, deductions from wages and other types of income of the debtor are made in a limited amount in the following cases:
1. When executing a debtor’s writ of execution, no more than 50% of wages and equivalent payments and distributions may be withheld until the amounts collected are fully repaid.
2. When deducting from wages and equivalent payments and payments under several executive documents, the employee must retain 50% of the wages.
3. Limitations on the amount of deduction from wages and equivalent payments and distributions established by paragraphs. 1 and 2 of this article do not apply to the collection of alimony for minor children, compensation for harm caused to health, compensation for harm to persons who suffered damage as a result of the death of the breadwinner, and compensation for damage caused by a crime. In these cases, the amount of deductions from wages and equivalent payments and distributions cannot exceed 70%.
4. The rules established by this article also apply to the collection of scholarships, pensions, remuneration due to the debtor for the use by the author of his copyright, the right to a discovery, an invention for which copyright certificates have been issued, as well as for an innovation proposal and an industrial design for which certificates have been issued .

By signing an employment contract, an employee can observe the clause on financial responsibility in the area of ​​work entrusted to him. This means that according to labor code the employer protects itself from possible losses associated with incorrect performance of their duties by subordinates. In the article we will talk about deducting shortfalls from wages and give examples of postings.

Causing material damage by an employee of an organization

If a shortage or material damage is detected, the employer has the right to recover from the salary the amount of damage caused. Retention must be carried out within the legal framework:

• A special inspection must be organized to determine the amount of damage incurred;
• The inspection is carried out by a commission that draws up reports on the causes and amount of damage and determines the culprit;
• The employee responsible for causing damage is obliged to familiarize himself with the acts and document in writing the reasons why the damage was caused to the organization;
• The employee is responsible for compensation for damages.

In accordance with labor legislation, the employee bears full financial responsibility in the following situations:

• The shortage of cash or goods occurred during the performance of the duties of a specific employee.
• The employee is financially responsible for certain goods or funds within the framework of the employment contract signed with the organization. Read also the article: → “”.
• The employee intentionally caused damage, or it occurred as a result of drug or alcohol intoxication or as a result of malicious intent (established in court).
• The employee caused damage to the material assets of the organization not in work time;
• The damage occurred due to inaction or incomplete performance of their duties by a specific employee;

Accounting entries: deduction of shortfalls from wages

After carrying out all the necessary procedures, the accountant is obliged to deduct the relevant accounts and withdraw the required amount from the employee’s salary.

Debit	Credit	Description
73	10 (01, 41,…)	A shortage of material assets (OS, money, goods, etc.) has been detected.
70	73	Withholding the shortfall from the employee's salary
50	73	Voluntary compensation for damage by an employee
91.2	73	Write-off for other expenses in case of incomplete compensation of the deficiency by the employee
73	98	Reflection of the amount intended for reimbursement
98	91.1	As the employee makes up for the shortfall, the amount is included in other income

Amount of salary deduction

Salary deductions can be classified as:

• Mandatory: personal income tax, withholding according to executive documents.
• Retention at the initiative of the employer.

According to labor laws, the maximum possible amount of deduction from wages is 20% of the salary, unless otherwise provided. Only if there is a justified reason can the employer count on a larger amount not exceeding the average monthly salary. Although in some cases a court decision may order compensation of an amount several times greater than the employee’s salary, this is the exception rather than the rule and depends on each specific case within the framework of existing legislation.

By agreement with the employer, the employee has the right to compensate for damage by transferring equivalent material assets.

Deduction from wages of shortages during inventory

Carrying out an inventory is the most effective method identify what was lost, broken or stolen and identify those responsible who will bear financial responsibility for the damage caused. But before making accusations, it is necessary to find out whether the shortage is a natural rate of loss, which is determined by law. If, nevertheless, a clear violation and deficiency is identified and documented by the relevant acts, then it is worth determining the real amount of damage that the employee is obliged to compensate.

Shortage at the cash register, deduction from the cashier's salary

Finding an insufficient amount of money in the cash register is also a damage. If such a precedent occurs, it is necessary to conduct an audit of the cash register. The procedure for conducting an audit must be fixed by internal legal documents. As when conducting an inventory (an audit is one of the forms of inventory), it is necessary to make sure that the amount of the shortage exceeds the natural rate of loss determined by law.

Having carried out the necessary procedure to record the fact of the shortage and familiarize the perpetrators with the documents on the audit, the organization has every right to recover the amount of the shortage from the salary, if it does not exceed the average monthly salary. The collection procedure is endorsed by the General Director in a special order, which must be issued within a month after all acts are drawn up, otherwise the shortage may be withheld by order of the executive authority.

Deduction from wages upon dismissal of an employee

There are situations when a shortage is identified, all documents are completed, and the employee expresses a desire to resign from the organization. In this situation, the employer has the right:

• Offer the employee to stay until his debt to the organization is fully worked off, but these are rather not legal measures, but rather personal ones between the employee and the employer;
• The employer has the right to withhold the amount of damage not exceeding wages or, with the voluntary consent of the subordinate, to withhold the entire amount of damage from the payments due upon dismissal;
• Collect damages through executive authorities.

The dismissal of an employee cannot be a reason for evading compensation for damage to the organization if the entire procedure took place within the legal framework established by Russian legislation.

An example of calculating deduction from an employee's salary

An employee of a car rental company received a fine for illegal parking. company car, when using it outside of working hours. The fine was issued to the organization and amounted to 5,000.00 rubles. The average monthly salary of an employee is 27,000.00 rubles. Based on the fact of the damage incurred, the company drew up relevant acts, which the culprit was familiarized with.

1. At the beginning of the month, the employee was given an advance in the amount of 10,000.00 rubles (personal income tax is not charged), 20% can be withheld from this amount: 10,000.00 * 0.2 = 2,000.00 rubles
2. For the entire month, wages were accrued in the amount of 27,000.00 rubles, personal income tax is 3,510.00 rubles, we will calculate the amount of compensation.
3. (27,000.00 – 3,510.00 – 10,000.00)*0.2 = 2,698.00 rubles
4. Balance amount 5,000.00 – 2,000.00 – 2,698.00 =302, rubles

Common mistakes when deducting from wages

1. Violation established order provided for by labor legislation, in terms of established deadlines and drawing up relevant acts. If this happens, the employee will have the right to go to court to appeal the employer’s actions;
2. Withholding too large amounts that are not provided for by labor legislation;
3. Deduction from wages for a reason not related to legal violations established by the labor code. In some organizations, employers use internal system fines for sitting in in social networks during working hours, smoking, appearance etc.

Common questions and answers

Question No. 1. In a situation where an employee completely refuses compensation for damage, is it possible to deduct wages without his written consent?

If the employee is a financially responsible person in accordance with labor legislation and the fact of a shortage was identified and recorded during all necessary legal procedure, then there are no obstacles to withholding damage from wages on a monthly basis until the damage to the organization is fully covered.

Question No. 2. The order to collect the shortfall was drawn up several months after the fact of the discovery of the shortfall was recorded, whether the withholding of wages is legal.

Deduction from wages will be legal if, before the order was issued, an explanatory statement was requested from the financially responsible person about the fact of the damage incurred and, subsequently, the employee was familiarized with the order in which the reason for the deduction is legal and corresponds federal law Russian Federation.

Question No. 3. CEO published internal order about fines for errors in documents, whether this is legal.

In itself, such an order cannot be legal, because it does not comply with labor legislation. In a situation where errors in documents lead to material damage to the company, for example, errors in a tax return can lead to a fine issued to the organization, even in this case a special commission must be organized to identify the perpetrators and obtain explanatory notes from them. And only then is an order issued to recover damages from these specific individuals in a specific case.