Deductions for material damage caused. Recovery of material damage by the employer from the employee in pre-trial procedure

An employee - a 5th category tunneler, while performing his job duties, damaged a rope, the amount of damage was 1,000,000 rubles. to the enterprise. An employment contract was concluded with the employee in which it is not specified job responsibilities, No job description. The company holds the employee to limited financial liability in the amount of average monthly earnings. Will it be legal to hold an employee financially liable, since an employee can be held liable if there is guilt, but how can the employee’s guilt be proven in this case? After all, he does not have a job description that specifically spells out his job responsibilities.

Answer

If it is difficult to establish the employee’s guilt, then it will not be possible to recover material damages.

To hold an employee financially liable, the following circumstances must exist:

  • direct actual damage, confirmed by relevant documents;
  • the employee’s guilt in causing such damage to the employer. Fault is understood as intent or negligence in the actions of the employee, which led to damage to the employer. The intent is that the employee knew (assumed) that the employer would suffer direct actual damage from his actions;
  • the employee commits unlawful actions (or inaction), i.e. violating the law;
  • a cause-and-effect relationship between the employee’s actions and direct actual damage incurred by the employer.

This requirement is established and confirmed by judicial practice (ruling of the St. Petersburg City Court dated November 3, 2011 No. 33-16427/2011).

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 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 assessed 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).

How long can an employer go to court to recover material damages from an employee?

It happens that the amount of damage exceeds the employee’s average earnings. The employer cannot deduct more from him. Then the only one the right decision will go to court. The same applies to the situation when an employee quits without compensating for all the employer’s losses, as well as when he refuses to compensate for damages voluntarily.

At the same time, it is very important to comply with the deadline set for employers to go to court. Namely one year. After all, if you miss it, you won’t be able to compensate for the damage at all. This procedure is provided for in Article 392 of the Labor Code of the Russian Federation.

In any case, the court will accept the statement of claim even after the deadline has expired. However, the refund will be denied. But if you present to the court valid reasons for missing the deadline, then it can be reinstated ( ).

Under good reasons understand exceptional circumstances beyond the employer’s will that prevented the filing of a claim. For example, a natural disaster or other force majeure situation that cannot be influenced ( ).

How do you count the year for filing a claim? Count it from the date the damage was discovered. That is, from the date of completion of the inventory, during which the amount of damage received was identified or recorded. In this case, consider the period itself to end on the corresponding date. last year term. Moreover, if the last day of the deadline falls on a non-working day, then it is transferred to the next working day. This is precisely the procedure provided for calculating deadlines in parts and Article 14 of the Labor Code of the Russian Federation.

In practice, a compensation agreement with an installment plan is often signed with the employee. But the guilty do not comply with it. In such circumstances, the period for the employer to go to court is counted from the date when the person violated the terms of the installment plan. This is, in particular, indicated in Try free access for 3 days >>


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To questions No. 808042., No. 809649 Financial liability. Hello, I can’t understand from your answers. If the employee’s guilt is proven by the commission that he caused damage worth 500 thousand, it turns out that the employer can still, by order, collect only one time the amount of 25,000 rubles - the average salary of the employee, but what about the rest of the amount. How to formalize the recovery of the full amount of damage, whether the employee’s consent must be formalized or the employer collects only the average salary in the amount of 25,000 rubles, once, and the rest through the court. or the employee pays the employer 25,000 rubles every month. until full repayment. Works for free. Thank you.

Answer

Answer to the question:

In order to understand whether the employee will bear full financial responsibility for the damage caused, it is necessary to determine whether this case relates to the cases listed in Article 243 of the Labor Code. This needs to be determined first. An employee can fully reimburse the amount of 500 thousand only if this is a case of full financial responsibility. Full financial liability does not depend on the amount; the amount can be any, for example 5 thousand. As for the procedure for collecting damages, it is established by Article 248 of the Labor Code.

1. The employee bears full financial responsibility only in cases specified in Article 243 of the Labor Code. The list of these cases is exhaustive. Cases of full financial liability, firstly, include the case of full individual financial liability borne by an employee who is hired for a position or performs work that is provided for in the List, approved. By Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85, an agreement on financial liability is concluded with him. Secondly, other employees of the organization may also bear full financial liability, but only in other cases directly established by Article 243 of the Labor Code. For example, if the damage is caused in a state alcohol intoxication or intentionally.

Your employee is not initially classified as a labor employee in accordance with Resolution No. 85. Therefore, in order to understand the full or limited liability he bears, you need to check the case. And only if this is one of the cases of full financial liability established by Article 243 of the Labor Code, then yes, you will be able to recover the full amount of 500 thousand. To do this, an inspection is carried out in accordance with the requirements of Article 247 of the Labor Code. And this can only be done in court.

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 by regulatory documents, so it can be drawn up 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 assessed 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:

  • 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).

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 submit to the employer indicating specific payment terms. If in the future the employee decides to resign and refuses to reimburse the remaining amount of damage, then the outstanding debt can be recovered in general procedure- through the court.

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.

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).

An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.

In January, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.

The amount of material damage is estimated at 12,000 rubles.

Kondratyev’s average daily earnings is 900 rubles/day. There are 17 working days in January.

Kondratyev’s average monthly earnings in January amounted to 15,300 rubles. (900 rub./day × 17 days).

Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. Moreover, from each of his salaries - no more than 20 percent.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee

The organization identified a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva entered into an agreement on full financial liability. She admitted her guilt.

Dezhneva’s average earnings in the month the shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, by order of the manager, 10,000 rubles are withheld from Dezhneva. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva’s salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover funds.

An example of calculating an employee’s salary, taking into account deductions within his average earnings

On January 12, 2013, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013 there are 17 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2013) is:
200,000 rub. : 250 days × 17 days = 13,600 rub.

Since the amount of material damage does not exceed average salary Kondratiev, all 10,000 rubles can be withheld from his income.

For January 2013, Kondratyev received a salary of 15,000 rubles. Kondratyev is provided with a standard personal income tax deduction in the amount of 400 rubles. (Kondratiev has no children).

The personal income tax amount for January 2013 is:
(15,000 rub. - 400 rub.) × 13% = 1,898 rub.

The employee's income after tax is:
15,000 rub. - 1898 rub. = 13,102 rub.

Maximum size deductions from an employee's monthly income are:
RUB 13,102 × 20% = 2620 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev’s salary. The remaining 7380 rubles. (10,000 rubles - 2,620 rubles) the organization will deduct from the employee’s salary in the following months.

Question from practice: who will compensate for damage in an accident for which an employee of the organization is found to be at fault

Damage in an accident that the employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (). In this case, the employee who caused the damage is obliged to compensate such expenses in full ().

The employee must reimburse:

  • the amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;
  • the cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).

However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him ().

An example of calculating material damage caused by an employee in an accident. The employee compensates for the damage caused in full

Driver of the organization Yu.I. Kolesov became the culprit of the accident.

The damage caused amounted to 130,000 rubles. Insurance payment the injured party under compulsory motor liability insurance amounted to 120,000 rubles. Repairing your own car cost the organization 35,000 rubles. The organization did not provide voluntary property insurance.

The amount of material damage that the employee is obliged to compensate to the organization is:
130,000 rub. - 120,000 rub. + 35,000 rub. = 45,000 rub.

Question from practice: Is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances

The answer to this question depends on the employee's consent to the retention. At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be drawn based on). At the same time, in labor legislation There are no restrictions on deductions that the organization carries out not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.

If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:

  • deposit the required amount into the cash register;
  • with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
  • compensate for damage by installments.

This procedure is provided for by the Labor Code of the Russian Federation.

If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss. You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation

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    • Deductions from wages at the initiative of the employer

    Deductions from wages at the initiative of the employer are possible for:

    • unearned advance payment issued against wages;
    • unspent and not returned in a timely manner amounts issued on account in connection with a transfer to work in another area, etc.;
    • overpaid wages and other amounts overpaid to an employee due to a counting error or upon proof of his guilt in idle time or failure to comply with labor standards;
    • the amount of compensation for unworked vacation days upon dismissal of an employee before the end of the year;
    • amounts of benefits (temporary disability and maternity benefits) overpaid in the event of a calculation error (for example, an arithmetic error was made when calculating earnings for a period) or unlawful actions of an employee (for example, an employee concealed information affecting the amount of benefits).

    Such cases of deductions at the initiative of the administration are listed in Article 137 of the Labor Code of the Russian Federation and Part 4 of Article 15 of the Law of December 29, 2006 No. 255-FZ.

    Here the question may arise: what is a counting error? If you used an incorrect algorithm for calculating benefits or vacation pay, such a counting error is not recognized. In particular, the amount of temporary disability benefits accrued in larger size due to the fact that the insurance period was incorrectly calculated. But if an arithmetic error was made in the calculation (for example, subtraction was made instead of addition), then the excess can be retained. This is just a counting error.

    Also, material damage caused to the organization by him or her can be deducted from an employee’s earnings. The basis here will be articles 238 and 240 of the Labor Code of the Russian Federation. But remember: in this case, only the amount of direct actual damage is compensated; the employee does not pay for the loss to the organization (Article 238 of the Labor Code of the Russian Federation). So, if, for example, an employee breaks a machine, then you can recover from him only the cost of repairs and spare parts. He is not obliged to compensate for the cost of products that were not made during the repair of the equipment.

    The employee does not bear any financial liability if the property was damaged during natural disaster, due to inadequate security, etc.

    A complete list of such situations is given in Article 239 of the Labor Code of the Russian Federation.

    Situation: is it possible to deduct a fine from an employee’s salary for violating internal labor regulations?

    No you can not. In the Labor Code of the Russian Federation there is no such thing as a fine. The legislation gives the organization the right to financially punish an employee for causing material damage (Article 238 of the Labor Code of the Russian Federation). An employee cannot be fined for violating internal labor regulations.

    For such an offense, the employee can be subject to disciplinary liability(Article 192 of the Labor Code of the Russian Federation). For example, make a reprimand or reprimand. As a last resort, if an employee systematically fails to comply work schedule, he can be fired.

    Attention!

    For retention from wages amounts not provided for by the Labor Code of the Russian Federation, the organization bears administrative liability under Article 5.27 of the Code of the Russian Federation on Administrative Offenses as a violation of labor legislation.

    How to file a lien

    To withhold any amount from an employee's salary, the organization must issue an order.

    The order must be issued within a month from the date of expiration to return the advance, repay debts or incorrectly calculated payments. An exception is the collection from a resigning employee of amounts accrued for unworked vacation days. There is no monthly period for withholding these amounts.

    This procedure is prescribed in Article 137 of the Labor Code of the Russian Federation.

    Example

    The manager of Alpha LLC Kondratyev A.S. received a salary of 37,000 rubles.

    From this amount the employee must pay:

    Membership fees - 100 rubles;

    Accountable amounts not returned in a timely manner (advance payment for a business trip) - 1000 rubles;

    Repayments for the purchase of goods - 5000 rubles.

    At the initiative of the administration, only 1,000 rubles can be withheld from Kondratiev’s salary. debts on accountable amounts.

    The organization can make other deductions only on the initiative of the employee himself (at his request).

    To withhold amounts to repay material damage caused to the organization, the manager must also issue an order within a month. This period is counted from the day when the commission establishes the amount of material losses. This is established by Article 248 of the Labor Code of the Russian Federation.

    If the employee does not agree with the grounds and amount of the withholding, then the organization will have to go to court to recover the missing amounts (Articles 137, 248 and 391 of the Labor Code of the Russian Federation, Article 11 of the Civil Code of the Russian Federation). You will also have to go to court if, within the month allotted by the Labor Code of the Russian Federation, the manager did not issue a retention order.

    What is the limit on the total amount of deductions?

    The amount of material damage that is recovered from an employee depends on what kind of liability is provided for it: full or limited. With limited financial liability, the employee is obliged to compensate for damage in an amount not exceeding his average salary (Article 241 of the Labor Code of the Russian Federation).

    However, the specific procedure for calculating it for such cases has not been determined. So you need to use general rules. Paragraph 4 of Regulation No. 922 establishes that average earnings must be calculated based on the actual accrued wages and the actual time worked for the 12 previous calendar months. In this case, the months preceding the month in which the employee caused the damage.

    That is, the total amount of salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days or hours on the employee’s schedule in the month in which he caused the damage.

    Yes, in this case the average earnings will depend on the month of calculation. However, there is no reason to simply divide your annual earnings by 12.

    Example

    In August 2015, due to the fault of an employee of the organization A.S. Nabokov, the server failed. The amount of material damage is estimated at 25,200 rubles.

    An agreement on full financial responsibility has not been concluded with the employee, which means that no more than the average monthly salary can be recovered from him. The accountant thought so.

    The employee works a regular five-day work week. The billing period is from August 1, 2014 to July 31, 2015, the employee worked there for 220 working days.

    The salary for these days amounted to 388,904.15 rubles.

    There are 21 working days in August 2015. From here the average monthly earnings will be:

    RUB 388,904.15 : 220 days × 21 days = 37,122.67 rub.

    This means that you can recover from the employee the entire amount of damage caused by him, that is, 25,200 rubles.

    In case of full financial liability, the employee is obliged to compensate the entire amount of damage caused (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the amount of penalties.

    Full financial liability of an employee occurs in two cases.

    Firstly, in situations provided for in Article 243 of the Labor Code of the Russian Federation. For example, when a shortage of valuables entrusted to an employee is discovered, if the employee caused damage due to an administrative offense (for example, an accident), etc. In this case, it does not matter whether an agreement on full financial liability has been concluded with the employee or not, he must compensate for the damage fully.

    Example

    The driver of the organization, Yu. I. Kolesov, became the culprit of a traffic accident. Insurance compensation was paid to the injured party by the insurance company.

    Damage caused to the organization's car is recovered from Kolesov. The amount of damage caused is 45,000 rubles.

    The employee is not talking about full financial responsibility. Nevertheless, regardless of Kolesov’s average salary, the organization can recover from him the entire amount of damage caused - 45,000 rubles.

    Secondly, in situations where an agreement on full financial responsibility has been concluded with an employee. Such an agreement must be concluded with employees whose positions are listed in Appendix 1 to Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

    In particular, these are cashiers, storekeepers, etc. The standard form of the agreement is given in Appendix 2 to Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

    Example

    The organization discovered a shortage of money in the cash register in the amount of 12,000 rubles. The organization’s commission found that cashier A.V. Dezhneva left her workplace, leaving the cash register office unlocked.

    An agreement on full financial responsibility was concluded with the employee.

    The organization has the right to recover from Dezhneva the entire amount of damage caused - 12,000 rubles.

    In some cases, financial liability may be provided for in the employment contract with the employee. This is allowed in relation to the deputy heads of the organization and the chief (Article 243 of the Labor Code of the Russian Federation).

    At the same time, the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in the employment contract with him or not (Article 277 of the Labor Code of the Russian Federation).

    The full amount of damage can be recovered from an employee under 18 years of age only if he:

    • intentionally caused damage to the organization;
    • caused damage while intoxicated;
    • caused damage as a result of a crime or administrative violation.

    Such cases are listed in Article 242 of the Labor Code of the Russian Federation. At the same time, there is no need to conclude an agreement with the employee on full financial responsibility.

    Situation: is it possible to deduct from an employee the cost of lost property issued against a receipt?

    Yes, you can.

    Labor legislation allows you to recover damages from an employee in the event of a shortage of valuables entrusted to him under a one-time document (Clause 2, Part 1, Article 243 of the Labor Code of the Russian Federation). Such a document could be a receipt. There is no standard form for receipt, so it can be drawn up in free form. For the loss of property received against receipt, the employee bears full financial responsibility.

    How long can you hold

    No more than 20 percent can be withheld from each employee's salary. This is exactly the rule that is spelled out in Article 138 of the Labor Code of the Russian Federation. If the employee's monthly salary is not enough to repay the entire amount of the debt, keep the remainder in the following months.

    Situation: from what amount of earnings - before or after personal income tax withholding - should the maximum amount of withholding be calculated at the initiative of the organization

    Determine the maximum amount of deductions by first reducing the employee’s salary by the amount of personal income tax. According to Article 138 of the Labor Code of the Russian Federation, the maximum amount of deductions must be calculated based on the income due to the employee. And the employee is entitled to income reduced by the amount of personal income tax.

    Example

    In April, due to the fault of an employee of the organization A.S. Kondratyev, the printer failed. An agreement on full financial liability has not been concluded with the employee. The amount of material damage is estimated at 12,000 rubles.

    Official salary Kondratiev - 15,000 rubles. His average monthly salary is 16,000 rubles. Therefore, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles.

    Standard tax deductions are not available to employees.

    The personal income tax amount for April is 1950 rubles. (RUB 15,000 × 13%).

    The maximum withholding amount for April is:

    (RUB 15,000 - RUB 1,950) × 20% = RUB 2,610

    Since this amount is less than the damage caused by Kondratyev, the accountant withheld only 2,610 rubles from his salary for April. The remaining 9390 rubles. (12,000 - 2610) will be deducted from the employee's salary in the following months.

    Situation: how to retain debt from an employee who quits. Deductions are made at the initiative of the organization

    And in this case, you also have the right to withhold no more than 20 percent from the employee’s last salary. The judges also agree with this (see the decision of the regional court of June 24, 2010 in case No. 21-103).

    What to do in a situation where the last payment is not enough to pay off the debt? It all depends on the specific situation. If we are talking about overpaid vacation pay, then all that remains is to invite the employee to voluntarily repay the debt. And if he refuses (which is also possible), the debt will have to be forgiven. The fact is that there is no reason to consider the resulting vacation pay debt as unjust enrichment. After all, this can only be discussed in case of dishonesty on the part of the employee or a counting error. This follows from paragraph 3 of Article 1109 Civil Code RF.

    Here are examples of cases decided in favor of workers - rulings of the Moscow Regional Court dated December 15, 2011 in case No. 33-25971 and the Moscow City Court dated August 8, 2011 in case No. 33-2316.

    If we are talking about material damage, then simply agree with the now former employee how he will repay you the remaining amount of the debt. The same applies to unreturned imprest amounts. The employee refuses to repay the debt? This means you will have to go to court.

    The maximum amount of deductions increases to 50 percent of take-home pay if you withhold money from the employee’s income under executive documents. Moreover, if at the same time you collect something on your own initiative, the total amount of deductions should also not exceed 50 percent (letter of Rostrud dated May 30, 2012 No. PG/3890-6-1). The maximum amount of deductions can reach 70 percent of earnings, if, according to executive documents, the employee must pay (Article 138 of the Labor Code of the Russian Federation):

    • compensation for harm caused to health;
    • compensation for damage to persons who have lost a breadwinner or caused by a crime;
    • child support for minor children.

    But keep in mind: your share of deductions in any case cannot be more than 20 percent.

    At the same time, the requirements of executive documents are mandatory. Compared to deductions initiated by the administration, they must be satisfied first. This means that an employee’s debt to the organization can be deducted from his income only after all obligations under writs of execution have been repaid.

    It turns out that if, according to a writ of execution, it is necessary to withhold, for example, 30 percent of the salary, it will no longer be possible to collect the employee’s debt to the company itself (letter of Rostrud dated May 30, 2012 No. PG/3890-6-1).

    The fact is that deduction from wages, for example, of amounts overpaid to an employee due to an accounting error, is not an exceptional case provided for in Part 3 of Article 138 of the Labor Code of the Russian Federation, when up to 70 percent of earnings can be recovered.

    Example

    In April, the organization received a writ of execution for the recovery of 6,000 rubles from employee Kondratyev A.S. in repayment of an outstanding loan. In addition, at the beginning of April, the employee had an unreturned and unconfirmed advance payment issued for travel expenses in the amount of 2,000 rubles.

    Kondratyev’s monthly salary is 18,000 rubles. Standard tax deductions are not available to employees.

    The personal income tax amount for April is 2,340 rubles. (RUB 18,000 × 13%).

    The maximum amount of deductions for April is:

    (RUB 18,000 - RUB 2,340) × 50% = RUB 7,830

    To compensate for the outstanding loan, the accountant withheld 6,000 rubles from Kondratyev’s salary.

    At the initiative of the administration, 3,132 rubles can be withheld from an employee’s salary. (RUB 15,660 × 20%). However, a large amount has already been withheld from the employee (RUB 6,000). Therefore, in April, the accountant will not be able to withhold anything against the debt to the organization.

    Thus, the amount of unreturned advance payment is RUB 2,000. will be deducted from the employee’s income only in the next month.

    At the same time, at the request of an employee, the company has the right to withhold any amounts from his salary (letter of Rostrud dated September 16, 2012 No. PR/7156-6-1). Therefore, you can ask the employee to express his consent in writing to the withholding of his debt to the organization.

    If he agrees to this, the company will be able to collect money under the writ of execution and withhold from the employee his debt to the company.

    Example

    In September, due to the fault of an employee of the organization Neverov A.S. The printer has failed. The amount of damage amounted to 12,000 rubles. In this case, you can recover from the employee no more than his average monthly earnings. Let's assume that its size was 37,122.67 rubles. Thus, the organization can recover from the employee the entire amount of damage caused - 12,000 rubles. Neverov’s official salary is 30,000 rubles. He is not entitled to standard tax deductions.

    At the same time, in early September, the company received a writ of execution for the same employee to pay alimony in the amount of 25 percent of earnings. The company must satisfy this requirement first of all. Therefore, in order to withhold the amount of damage from the employee, the company obtained his written consent. At the same time, Neverov indicated in his statement that he was asking to withhold no more than 50 percent of the salary in hand.

    For the first half of the month, the company pays an advance of 50 percent of the salary. The employee was paid 15,000 rubles. (RUB 30,000 × 50%). To pay alimony, the accountant withheld 3,750 rubles. (RUB 15,000 × 25%). And the same amount for damages.

    At the end of the month, the personal income tax amount was 3,900 rubles. (RUB 30,000 × 13%).

    The following amount may be withheld from wages for the second half of the month to pay alimony:

    (30,000 rub. - 3,900 rub. - 15,000 rub.) × 25% = 2,775 rub.

    And the same amount for damages.

    Thus, the accountant withheld only 13,050 rubles from the employee’s salary for September. (3750 × 2 + 2775 × 2), including 6525 rub. (3750 + 2775) for damages. The remaining 5475 rubles. (12,000 - 6525) will be deducted from the employee's salary in October.

    What are the rules for withholding material damage?

    Withhold the amount of material damage from the employee’s income in this order. First, calculate your total loss, which includes:

    • the 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).

    The scope of losses that an employee who has caused material damage to the organization is required to compensate is specified in Article 238 of the Labor Code of the Russian Federation.

    Situation: who will compensate for damage in an accident for which an employee of the organization is found to be at fault

    Damage in an accident that an employee caused to third parties (in excess of compensation under compulsory motor liability insurance) must be compensated at the expense of the organization (Article 1068 of the Civil Code of the Russian Federation). In this case, the employee who caused the damage is obliged to compensate such expenses in full (subclause 6, part 1, article 243 of the Labor Code of the Russian Federation).

    The employee must reimburse:

    • the amount that the organization transferred to the injured party in excess of compensation under compulsory motor liability insurance;
    • the cost of repairing the organization's car (if the organization did not enter into a voluntary property insurance agreement or the insurance did not fully cover the costs of repairs).

    However, by decision of the head of the organization, the employee may not fully or partially compensate for the damage caused by him (Article 240 of the Labor Code of the Russian Federation).

    To confirm the amount of material damage in an organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). 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, and for this an inventory commission must be created. Indicate the identified shortage (cost of losses) in the matching statement ( standard forms No. INV-18 or No. INV-19).

    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.

    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 this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses within the limits of natural loss. This procedure is established by Article 246 of the Labor Code of the Russian Federation.

    After determining the amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

    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.

    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.

    Situation: how to determine 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 special methodology for calculating average monthly earnings in this case. For all cases of maintaining average earnings, a uniform procedure for calculating it on the basis of average daily (hourly) earnings has been established (Article 139 of the Labor Code of the Russian Federation). 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 (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated on the basis of the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Decree of the Government of the Russian Federation dated December 24, 2007 No. 922).

    Let us remind you that you can deduct no more than 20 percent from an employee’s monthly salary. Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.

    An amount of damage exceeding the average monthly salary can be recovered from an employee only through the court (if he bears full financial responsibility). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage by installments is allowed.

    This procedure for collecting damages is established by Article 248 of the Labor Code of the Russian Federation.

    An employee can:

    • deposit the required amount into the cash register;
    • with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property).

    If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss.

    You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation).

    At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

    The fact is that the mere fact of causing damage is not grounds for termination. employment contract at the initiative of the employer; For this, you also need a decision from the competent authority (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 Labor Code of the Russian Federation as amended Federal Law dated June 30, 2006 No. 90-FZ.

    How to properly make deductions from wages

    Dismissal when there is a change in the ownership of the organization's property or reorganization" and "Everything you wanted to know about layoffs." The list of grounds that allow 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

    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.

    Is it possible to deduct the amount of damage from the salary?

    Info

    Therefore, before proceeding with recovery, the head of the organization must create a special commission of investigation and establish the fact of the violation, the employee’s involvement in it and the amount of damage caused to the enterprise. According to Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct damage caused.


    Attention

    It is impossible to recover from wages only the amount of lost profits. Read also about how to withhold shortfalls from your salary.


    Amount of penalty Specific amounts of deductions from staff salaries are established by Art. 138 Labor Code of the Russian Federation. Collection cannot exceed 20% per month. The amount to compensate for the damage caused to the enterprise must be withheld from accrued wages minus income tax of 13%.
    Read also: Examples First example: The accrued salary of an employee for the month is 45 thousand. The damage was 30 thousand.

    If the employee remains in debt: how to keep

    Code of Administrative Offenses of the Russian Federation):

    • from 1,000 to 5,000 rubles. – fine for officials and IP;
    • from 30,000 to 50,000 rub. – fine for organizations.

    Likewise, an employer cannot, on its own initiative, withhold amounts from an employee’s salary to repay a loan issued to him. Repayment of the loan by deduction from wages is possible only at the request of the employee.
    An employee can also “ask” in writing for the employer to withhold other amounts from wages every month: to repay a bank loan, for voluntary child support, etc. In this case, the bank commission and other expenses associated with the transfer of the specified amounts to the recipient must also be paid at the expense of the employee.
    ! Please note: Deductions from wages that the employer makes at the written request of the employee are not “deductions” within the meaning of Art.

    Salary deductions

    The foundation documents oblige the employer to first create a commission to investigate and establish the amount of material damage. The employee must be required to provide a written explanation of what happened.
    If he refuses to give them, you need to draw up a corresponding act. At the end of the investigation, it is recommended to create a report with the amount of damage caused to the company. Art. 248 of the Labor Code of the Russian Federation states that in order to recover, the employer must issue a decree (order). It is he who will act as the documentary basis for deduction from salary. If the employee does not agree to pay the debt, and the amount of damage is more than his average monthly earnings, the debt can only be collected through the court. Then the court decision will serve as the documentary basis.


    In such circumstances, an additional retention order is not drawn up.

    Chapter 11 deductions from wages

    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 following cases Although deductions are made, they are subject to month period and provided that the employee does not dispute their basis and amount: 1) to repay the unspent and not timely returned advance issued in connection with business trip or transfer to another job in another area, as well as in other cases.

    Four rules for deductions from wages

    Voluntary compensation by an employee for damage - full or partial - is 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 a guilty employee by order of the employer is 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.
    In this case, the agreement must be notarized, and on its basis the employer is obliged to make contributions in the amount provided for by the provisions of the agreement, but not higher than the maximum limit of 70% of the employee’s salary.

    • Performance list. If enforcement proceedings are in force against an employee, then the enforcement service may impose a penalty, including on the employee’s income.

      In this case, the writ of execution is a sufficient basis for making deductions from wages.

    • Decision of the labor dispute commission. In the event of a labor dispute with the employer, the final decision on making deductions from the employee’s salary, for example, to compensate for damage, can be made by the labor dispute commission.

      However, such a decision can subsequently be challenged in court.

    • A court decision or court order.

    Compensation for damage by deduction from wages

    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 correctly formalized 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.
    Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (Part 2 of Article 238 of the Labor Code of the Russian Federation). According to Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to data accounting taking into account the degree of wear and tear of this property. At the same time, by virtue of Part 1 of Art.
    And, if the perpetrator’s monthly income was 70 thousand rubles, the employer would not need the employee’s consent to collect it. Sample application Download a sample application for consent to withhold funds to compensate for damage caused to the employer – word. An order for compensation for damage caused to an enterprise. The legislation does not provide for a special form of such a document. Therefore, the order is issued in free form. However, there are mandatory items that are recommended to be included in it:

    • full name of the organization;
    • the title of the document itself;
    • brief description - what the order is about;
    • Date of preparation;
    • a brief description of the situation with links to accompanying documents and laws;
    • a requirement to withhold no more than 20% of the monthly salary of a specific employee, indicating his full name.

    Unfortunately, no employer is insured against the possibility of property damage by an employee. Sometimes this is caused by the employee’s negligent attitude towards his professional duties. It is completely natural for the employer to want to compensate for the damage caused at the expense of the employee. But can you always count on this? How to properly recover material damage from an employee? What mistakes are most often made by employers in this case?

    When does responsibility come?

    The onset of financial liability for causing damage to the employer’s property is provided for by the Labor Code of the Russian Federation (Article 283). Financial liability can be characterized by two characteristics:

    • one of its parties must act individual who is working for the employer at the time of property damage;
    • The amount of liability depends on the extent of the damage and the nature of the violation that led to damage to the property.

    Financial liability occurs provided that:

    • direct damage;
    • illegal behavior, negligence, improper performance of professional duties;
    • the fault of the employee who caused the damage.

    If damage to the employer's property is caused by force majeure, defense, or extreme necessity, financial liability does not arise. Also, the employee is not responsible for property when the employer does not provide the necessary conditions for its safety.

    What is financial responsibility?

    The essence of financial liability lies in the employee’s obligation to compensate for the material loss caused by him. In this case, only damaged property is implied; lost profits are not taken into account.

    The definition of material damage includes an actual decrease in the quantity or deterioration in the quality of the employer’s property. For example, lack of money, damaged equipment, raw materials, materials, costs of paying a fine in relation to the employer, who was appointed due to the fault of the employee.

    What is the employee's responsibility?

    The main types of financial liability of employees are presented in the table:

    Type of liability What is When does it occur
    FullDamage is fully compensated1. If this is provided for by law for the position held by the employee, for example, director of an enterprise;

    3. when intent is present and proven to cause property damage;

    4. in case of alcohol, toxic or drug intoxication of an employee at work, resulting in damage;

    5. the illegality of the employee’s actions, which led to damage, has been proven;

    6. the employee has disclosed a trade secret
    PartialOnly part of the loss is reimbursed. The amount of compensation does not exceed the average monthly earningsIn other cases

    A contract of full liability - a guarantee or an attempt by the employer to insure its property?

    It is common practice for employers to conclude an agreement on full financial responsibility with each person hired. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But it is not always the case. Such an agreement will not become a “magic wand” for the employer in any case.

    For example, the employer tried to obtain compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court refused this, despite the existence of an agreement on full financial liability between the employee and the organization. The reason was that the official duties of this employee did not directly include ensuring the safety of the company’s property.

    How to recover damages caused?

    The procedure for recovering material damage caused to an employer consists of several stages:

    • conducting an inventory of funds;
    • creation of a commission to conduct an official investigation and establish the reasons that caused the damage;
    • receiving from an employee written explanation reasons for the loss. If he refuses, then the refusal should be recorded in the act;
    • calculation of the amount of damage caused in the market valuation on the day of its occurrence. At the same time, the value of lost or damaged property should not be less than that recorded in accounting records;
    • differentiation of the degree of guilt and responsibility between employees if the loss was caused by the fault of several persons.

    The employer has the opportunity to withhold losses from the perpetrator not only through the court, but also in pre-trial proceedings.

    Without recourse to the courts, a shortfall not exceeding the employee’s average monthly earnings is withheld. An order for this must be created no later than a month after the incident occurred and losses were calculated. If an employee objects to the employer’s actions, he can go to court.

    The parties may agree to pay off the damage in installments. In this case, you should draw up a payment schedule and indicate specific terms. If an employee has undertaken to compensate for the damage caused, but quits without doing so, the employer can go to court. Also, only in court can the issue of collecting damages from an employee in an amount exceeding his average earnings be resolved if he refuses to voluntarily do so.

    Reflection of damage on accounts: postings

    The value of the property established during the inventory must be shown in the debit of account 94. Read also the article: → “”. This amount is recorded in the accounting accounts as follows:

    Account correspondence Contents of a business transaction
    Debit Credit
    73/2 94 Attributing the shortage to the culprit
    50, 51, 70 73/2 The employee deposited money into the cash register or company account, or the missing amount was withheld from his salary
    73/2 98/4 The difference between the market and accounting estimates of the loss, if any, is shown
    98/4 91/1 The difference between the market and balance sheet valuation is written off as the culprit pays off the damage. If the loss is compensated in parts, the difference is written off in proportion to the amount of repayment
    94 98 A shortage relating to previous periods was discovered in the reporting period and included in deferred income
    98 91 Deferred income relates to the reporting period when the loss is repaid by the culprit.

    The shortfall cannot be withheld from an employee if the employer does not have documentary evidence of his guilt.

    The most common mistakes employers make when recovering damages

    When trying to obtain compensation for material damage from an employee, an employer often makes the following mistakes:

    • an attempt to obtain full compensation for the damage caused. Full refund damage is allowed only in strictly defined by law cases (Article 241 of the Labor Code). Also, the manager and Chief Accountant enterprises;
    • concluding an agreement with each employee on full financial liability in the hope of being able to recover the entire loss. Even if such an agreement was concluded, but there was no legal grounds for this (the employee’s position is not on a special list, or his activities are not related to material assets), then the court will declare it invalid;
    • an attempt to recover from the employee not only the damage caused, but also the lost profit. The employee is obliged to compensate only for direct losses;
    • The employer’s mistake is to withhold the amount of the administrative penalty imposed on him due to the fault of the employee. For example, the seller did not ensure that expired food products were removed from the shelves in a timely manner. As a result of the inspection, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After this, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to compensate for damages in this amount, and the employer went to court. The court, taking into account all the circumstances, rejected the employer’s claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average salary of the employee.

    Answers to pressing questions about the recovery of material damage from an employee

    Question No. 1. Is it possible to pay off material damage in installments?

    Yes, the possibility of repaying the damage caused to the employer in parts exists. This is permissible subject to the mutual consent of the parties to the employment contract. To do this, it is necessary to draw up a written commitment from the employee to repay the debt in installments and indicate a payment schedule. On this obligation, the head of the enterprise must put a resolution that he does not object. It is possible to arrange an installment plan with a separate order or order, which will indicate the payment schedule.

    Question No. 2. Should an employer be required to withhold damages caused by an employee?

    Recovery of material damage is not the responsibility of the employer. Rather, it is his right. The employer has the right to refuse this procedure if the circumstances specified in Article 240 of the Labor Code of the Russian Federation occur. These include the difficult financial situation of the employee, a small amount of damage caused, and dependent minor children. The employer may not recover material damage initially, or refuse to recover it at the stage of legal proceedings. In this case, you must issue a waiver of claims in writing.

    In most cases, the employer can recover only that part of the damage caused that does not exceed the average salary of the employee. The list of cases when full financial liability occurs is established by law and the employer cannot expand it in any way. Regulatory acts There is no specific procedure for calculating average earnings for the purpose of compensating for losses caused by an employee. When determining it, you can use general calculation rules based on the duration of the billing period of 12 months.

    Question No. 4. How much, in accordance with the law, can the employer withhold from the culprit for the damage caused?

    If the case does not fall under the legally defined option of full repayment of the cost of the loss, then the most that the employer can count on is the average salary of the employee. You cannot deduct more than a fifth of your earnings per month. If the employer believes that he has the right to demand repayment of the damage caused in full, but the employee does not want to do this, then such a disagreement must be resolved in court.