Guarantees of compensation under labor law. Concept and types of guarantees and compensation

In Part 1 of Art. 164 of the Labor Code of the Russian Federation, guarantees are defined as the means, methods and conditions by which the implementation of the rights granted to employees in the field of social and social security is ensured. labor relations. Thus, as a purpose of application established by law guarantees indicate the exercise of rights available to employees. Consequently, guarantees perform a security function in relation to the rights established for employees.

The Labor Code of the Russian Federation divides guarantees and compensation into general ones (for hiring, transfers, remuneration, termination employment contract etc.) and special Kolobova S.V. Russian labor law: Tutorial for universities. - M: Justitsinform, 2005, p. 264..

The source of financing guarantees and compensation can be both the employer’s funds and the funds of bodies and organizations in whose interests the employee performs state or public duties (jurors, donors, etc.).

Legal regulation of the conditions for the provision of guarantees and compensation is not the prerogative of labor legislation and is carried out with the help of federal laws and other regulatory legal acts.

In accordance with Art. 165 of the Labor Code of the Russian Federation, in addition to general guarantees, for example, when hiring, transferring to another job, and remuneration, employees are provided with certain guarantees in the following cases: 1) being sent on business trips; 2) moving to work in another area; 3) performance of state or public duties; 4) combining work with training; 5) forced termination of work through no fault of the employee; 6) provision of annual paid leave; 7) termination of an employment contract on certain grounds; 8) delays due to the fault of the employer in issuing it to the employee work book upon dismissal.

Naturally, this list guarantees are not exhaustive, since the establishment of additional guarantees in agreements, collective agreements, and other local acts organization, employment contract improves the position of the employee compared to current legislation. Therefore, their establishment does not conflict with the law.

The basic rights of an employee include: 1) provision of work according to the function specified in the employment contract; 2) the right to working conditions that comply with current standards; 3) receiving remuneration for work performed. Accordingly, the guarantees are designed to ensure the implementation of the listed rights. For example, an employee may be absent from work for reasons established by law. In this case, he is guaranteed to retain his job and average earnings.

Employee rights can be of a property or non-property nature.

Existing guarantees for the exercise of these rights may also be of a property or non-property nature. In particular, in the absence of an employee at work due to violation of payment terms wages he is guaranteed the preservation of his job, previous working conditions, and non-distribution of personal data. The listed guarantees can be considered non-property, since they do not have a specific value for the employee. Commentary on the Labor Code Russian Federation. / Rep. ed. Yu.P. Orlovsky. - M.: INFRA-M, 2009. - 1500 pp. Lebedev V. Interaction of labor law systems and labor legislation // Russian justice. - 2003. - No. 11. P. 24..

During the period of absence of an employee from work due to non-payment of wages, he is guaranteed the preservation of the average wage. This guarantee is of a property nature, since it is associated with the provision of movable property to the employee in the form of cash in a certain amount.

A distinctive feature of non-property guarantees is their direct connection with the employee’s place of work; they are designed to ensure that the employee, in cases established by law, retains the same working conditions, including workplace. In connection with this, the main non-property guarantee is to provide the employee with his previous place of work after absence good reasons recognized as such by law, for example, in case of violation of the terms of payment of wages.

Property guarantees are directly related to the employee’s right to receive monetary remuneration for his work, that is, wages. Therefore, they are always related to the average salary received by the employee. Therefore, the provision of property guarantees has a direct connection with the average employee’s earnings.

In connection with the above, we can highlight the following legally significant circumstances that characterize legal concept labor guarantees. Firstly, it is established in legislation, agreements, collective agreements, other local legal acts of the organization, and an employment contract. Secondly, the direct provision of labor rights provided for in legislation. Thirdly, ensuring the implementation of both non-property and property rights of workers in the world of work. At the same time, non-material guarantees are designed to ensure the preservation of previous conditions labor activity, in particular places of work. Property guarantees are always related to what the employee receives wages Lebedev V. Interaction of labor law systems and labor legislation // Russian justice. - 2003. - No. 11. P. 24..

The provision of non-property guarantees is associated with ensuring the rights that arise for employees in labor relations. By general rule such guarantees cease to apply upon termination of the employment relationship. However, the employer is obliged to ensure that the employee stores and transfers his personal data in compliance with the requirements of labor legislation even after his dismissal. Thus, this guarantee is valid even after the termination of the employment relationship. However, failure by the employer to comply with this guarantee entails the possibility that the employee may receive damages caused by the rules of civil law after the termination of his employment relationship. In this case, the person with whom the employment relationship has been terminated may demand not only compensation for losses incurred in connection with the employer’s refusal to comply with non-property guarantees, but also compensation for moral damages V.I. Mironov. Labor law of Russia. - M., 2006. P. 354..

Property guarantees also operate in parallel with labor relations. However separate guarantees are provided even after leaving work. These include severance pay paid to dismissed persons. However, the presence of this guarantee does not affect the fate of the employment relationship that is terminated.

In connection with the foregoing, we can conclude that guarantees are related to ensuring rights arising in labor relations. The provision of these guarantees after the termination of employment relations does not affect their fate, but such provision also serves to ensure the labor rights of employees, which can continue after the termination of employment relations, for example, the right to compensation for losses caused by the employer and to compensation for moral damage due to non-compliance with established legislation rules of conduct.

Each official employment must be supported by certain guarantees and compensation. Guarantees and compensations in labor law are mandatory. And if the second concept is exclusively material in nature, the first can have both material and intangible connotations. Let's take a closer look at what these provisions include.

Definitions

Basically, the concept of guarantees and compensation is considered from the point of view of labor law. According to Article 164 of the Labor Code of the Russian Federation, guarantees mean the means, conditions and methods by which employees of organizations are granted various rights in social and labor relations. The guarantees that are provided by law and provide these rights to all employees can be of a material or intangible nature. The first includes maintaining salary during vacation or training, long business trip or sick leave, etc. The second concept includes maintaining a job or providing another position.

In relation to guarantees, concepts such as payments or additional payments are also used. Guarantee payments mean those payments that are issued to an employee for the time until he fulfilled his labor obligations for valid reasons that are established legislative norms. According to general rules, they replace wages. Guaranteed additional payments are provided above the established salary.

Compensations are understood as monetary payments that are reimbursement to the employee for the costs associated with the execution of labor responsibilities and are provided for by law.

If an employee spent money during production needs, the organization must compensate for the losses incurred in cash.

The concept of guarantees and compensation in labor law can be used together if the case so requires. For example, if the employee is a donor.

In addition to reimbursement of expenses, employees are entitled to compensation for moral damage that may be caused in the workplace.

Basic goals

The main purposes of providing guarantees and compensation are:

1. Providing employees with average earnings in certain cases provided for by law when they do not perform their direct duties.
2. Reimbursement for employees of monetary expenses specified in the law, incurred by them due to production needs.

The main guarantees and compensations in the labor law of the Russian Federation are prescribed in the Labor Code of the Russian Federation.

Types of guarantees

The main types of guarantee payments include:

Special cases

In addition to the established guarantees, the legislation identifies the following types guarantees and compensation in labor law:

1. When going on business trips or other official trips.
2. When moving to another city in order to fulfill work obligations.
3. When performing government or public activities.
4. When combining study and work.
5. If necessary, stop work due to employee misconduct.
6. on annual vacation.
7. In exceptional cases of termination of employment relationships.
8. Due to the delay in issuing the employment form due to the fault of the employer upon termination of the employment relationship.
9. Other types of guarantees and compensations provided for by labor law.

Basic principles

The basic principles of providing compensation and guarantees include:

• establishing a mandatory level of compensation and guarantees;
• the obligation of the heads of organizations to provide employees with statutory guarantees and compensation;
• the employee’s right to statutory compensation and guarantees;
• the possibility of improving the situation of employees compared to what is established by legislation in the field of compensation and guarantees at the agreement level at the expense of the contracting parties.

Business trips

A business trip is understood as a trip by an employee at the direction of a manager for a specific period of time to perform his duties.

Today the legislation does not establish maximum term business trips, it is determined by the employer individually, based on the nature of the assignment. Business trip The trip of an employee who has a traveling nature of work does not count.

Sending an employee on a business trip must be formalized by order of the head of the organization. Based on this, a travel certificate is issued, in which it is necessary to indicate the beginning of the business trip and its end, as well as the point of travel. At the end of the business trip, the employee is required to submit a report on the work done.

When an employee is sent on a business trip, he is provided with guarantees and compensation, which are designated as mandatory in labor law. These include:

1. Maintaining your job and position. An employee does not have the right to be transferred to another position or dismissed at the initiative of the employer (unless this is the liquidation of the enterprise).
2. Maintaining wages. During the business trip, the employee retains average earnings. If a citizen works part-time, then payment of travel expenses, as well as maintaining earnings, falls on the organization that sent him on the trip. If an employee is sent on a business trip by both organizations at once, then the salary must be maintained both at the main place and part-time.
3. Reimbursement of travel expenses. Such reimbursements include: travel expenses, accommodation expenses, additional expenses and those expenses that are allowed to the employee with the consent and knowledge of the employer.

A special compensation procedure is provided for those employees who work on a rotational basis. Since this way of working is permanent for them, instead of daily allowances they are paid bonuses to the basic tariff rate.

Moving

Guarantees and compensation in labor law are briefly described for moving to work in another area.

Relocation usually involves various expenses, and the employer must reimburse them. The following are subject to compensation:

• expenses for moving the employee and his family, as well as for transporting basic property (the exception is cases when the employer provides the employee with the necessary means of transportation);
• expenses for arrangement in a new place.

The amount of compensation must be agreed between the parties in writing.

Military duty

Guarantees and compensations in labor law are also provided for citizens performing military duty. Such persons may be released from work while maintaining their place of work and average earnings (during military training), receive compensation related to the rental of housing, payment for relocation or travel from home to work, receive travel allowances for the duration of a medical examination, examination or treatment for the purpose of diagnosis for military registration, preparation for conscription or military service.

If an organization incurs expenses due to the implementation of the law on conscription, then they are reimbursed from the federal budget.

Combining study and work

Guarantees and compensations in labor law are also regulated for employees combining study and work. These include:

• Study leave (can be granted on the basis of a letter of invitation from an educational institution).
• Shortening the working day.
• Travel compensation.

Guarantees and compensation may be provided if:

• the institution has state accreditation;
• the employee fulfills the curriculum standards in a timely manner, has no debts for semesters, and completes all assigned work on time;
• The employee has never received higher education before.

If an employee receives education in several institutions at once, then payments are provided in connection with training in one of them.

If an employee studies by correspondence, the employer pays his travel expenses once a year. At the request of an employee studying part-time or in the evening, he may be reduced working week for seven hours for ten months before preparing for a thesis or passing state exams.

The current labor legislation defines guarantees as the means, methods and conditions by which the exercise of the rights granted to employees in the field of social and labor relations(Art.

164 TK).

Covering all means of ensuring the labor rights of workers, norms and guarantees permeate all institutions of labor law and, together with labor rights, form the basis of the mechanism legal regulation labor relations.

The allocation of guarantees in a special section of the Labor Code, obviously, was intended to emphasize the significance and comprehensive nature of the guarantees. However, unfortunately, the legislator showed inconsistency and traditionally placed some of the guarantees within the relevant institutions, for example: guarantees when concluding an employment contract (Article 64 of the Labor Code); guarantees of the right of workers to work in conditions that meet labor protection requirements (Article 220 of the Labor Code); basic state guarantees for wages (Article 130 of the Labor Code); guarantees to employees who are members of the elected collegial bodies of trade union organizations and who are not released from their main jobs (Article 374 of the Labor Code); guarantees to released trade union workers (Article 375 of the Labor Code), etc.

The other part of the guarantees is allocated to a special section, and with the exception of guarantees related to the termination of an employment contract and combining work with training, they have a narrower meaning and represent only those legal means by which the employee retains certain rights in cases where he does not fulfill his labor function in connection with the performance of duties in accordance with the law. Usually in such cases, the employee retains his place of work and average earnings in order to prevent his loss.

Of a very special nature are guarantees for an employee in case of temporary disability (Article 183 of the Labor Code), guarantees and compensation in case of an accident at work and occupational disease (Article 184 of the Labor Code). In the strict sense of the word, in these cases we can talk about guaranteeing the employee social insurance in these cases, and the insurance itself is carried out in accordance with the legislation on social insurance.

Thus, in Sect. VII Labor Code concentrates guarantees for workers, which, on the one hand, do not cover all guarantees of labor rights, on the other hand, do not correspond to the “narrow” concept of guarantees (maintenance of employment and average earnings).

Traditionally, in the science of labor law, there is a special category of guarantee payments and guarantee additional payments. This is the so-called monetary form of guarantees. They are paid to the employee in order to maintain earnings for periods when, for good reasons, he did not fulfill his work duties and did not acquire the right to wages, or when his earnings, due to circumstances beyond his control, are reduced.

Such cases include, for example, maintaining average earnings during the annual or study leave, payment for downtime through no fault of the employee.

Guaranteed additional payments are made in cases where an employee’s wages are reduced for reasons specified in labor legislation.

For example, an additional payment up to average earnings when an employee is transferred to another lower-paid job in accordance with a medical report (Article 182 of the Labor Code).

In addition to guarantees, labor legislation provides for monetary payments to reimburse additional costs incurred by employees in connection with their performance of labor or other established federal laws duties (Article 164 of the Labor Code). They are called compensations.

Compensations should be distinguished from compensation payments that are part of the employee’s salary and are named so in accordance with their purpose (Article 129 of the Labor Code). Unlike compensation payments, which represent part of the remuneration for labor (compensation for the adverse effects of harmful production factors, inconvenient regime, etc.), compensation within the meaning of Art. 164 TC aimed at covering additional expenses employee.

Often, the provision of guarantees in the form of job security and average earnings is combined with compensation, since, along with the performance of relevant duties, the employee incurs additional expenses.

The main cases of providing guarantees and compensation are provided for in Art. 165 TK. They are provided:

When sent on business trips;

When moving to work in another area;

When performing state or public duties;

When combining work with training;

In case of forced cessation of work through no fault of the employee;

When providing annual paid leave;

In some cases, termination of an employment contract;

Due to a delay due to the fault of the employer in issuing a work book upon dismissal of an employee.

At the same time, section VII TC is not limited to those specified in Art. 165 TC cases, but significantly adds them.

In addition, the collective agreement, agreements, local regulations, the employment contract may provide for other cases of providing employees with guarantees and compensation, as well as establish more tall sizes guarantee and compensation payments in cases provided for by law.

As a general rule, guarantees and compensation are provided at the expense of the employer. At the same time, in cases where an employee is distracted from performing work duties in the interests of other bodies and organizations, the corresponding guarantee and compensation payments are made at the expense of these bodies and organizations either by direct payments to employees (for example, jurors), or by reimbursing employers for expenses incurred (for example, the Russian Ministry of Defense reimburses employers for expenses associated with the implementation of the Law on Military Duty) in the manner and under the conditions provided for by law . In such cases, the employer only releases the employee from his main job for the period of performing state or public duties.

More on the topic § 1. The concept of guarantees and compensation:

1. Guarantees and compensations for persons working part-time
2. Guarantees and compensation for persons participating in collective bargaining
3. § 4. Guarantees and compensation for employees combining work with training
4. Guarantees and compensations for certain categories of workers
5. Work experience required to receive guarantees and compensation
6. Guarantees and compensation for employees sent to work in representative offices of the Russian Federation abroad
7. § 6. Guarantees and compensation for employees combining work with training
8. Guarantees and compensation for employees involved in the performance of state or public duties
9. Guarantees and compensations for employees studying in evening (shift) educational institutions

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Concept and types of guarantees and compensation

In accordance with Article 164 of the Labor Code of the Russian Federation, guarantees - these are the means, methods and conditions by which the implementation of the rights granted to employees in the field of social and labor relations is ensured.

The guarantees established by law and ensuring the implementation of the rights granted to employees can be both intangible (for example, maintaining a place of work, position, providing another job) and material (preserving average earnings for the period of study leave, annual leave, business trip) in nature 1 .

Guarantees are often guarantee payments and additional payments. Guarantee payments are those payments that are made to employees for the time when they actually did not perform their labor duties for valid reasons provided for by law. They, as a general rule, replace the employee’s wages, guarantee surcharges go above and beyond wages. Both guarantee payments and additional payments are aimed at preventing a decrease in the employee’s earnings in cases where he is released from performing work duties. Their difference from wages is that wages are paid as a result of labor, and guarantee payments are not paid for labor, its results, but guarantee payment in cases provided for by law 2.

All guarantee payments can be classified into kinds.

Dependent on production or the actions of the manager (payment for downtime due to the fault of the employer, payment for forced absence in the event of illegal dismissal, severance pay upon dismissal);

Ensuring the employee’s right to paid leave (labor, educational, social);

Guaranteed additional payments: to minors for reduced working hours; for certain types of breaks; when transferred to an easier (lower paid) job;

Not dependent on production, but necessary for the state and society (fulfillment of state duties, participation in collective bargaining, military training, etc.)

Compensation – these are cash payments established to reimburse employees for costs associated with the performance of their labor or other duties provided for by federal law 3 .

Costs incurred by the employee while performing his job duties must be reimbursed to him in the form of cash payments.

In a number of cases, legislation provides for the provision of both guarantees and compensation to the employee, for example, in the case of donating blood and its components.

In addition to reimbursement of expenses incurred by the employee, the law provides for monetary compensation for moral damage caused to the employee (Article 237 of the Labor Code).

A collective or labor agreement may provide for other cases of an employee receiving guaranteed compensation payments in comparison with the law, as well as establish higher amounts of such payments.

Cases of provision of guarantees and compensation. In addition to the general guarantees and compensation provided for Labor Code RF (guarantees for hiring, transfer to another job, wages, etc.), employees are provided with guarantees and compensation in the following cases:

When sent on business trips;

When moving to work in another area;

When performing state or public duties;

When combining work with training;

In case of forced cessation of work through no fault of the employee;

When providing annual paid leave;

In some cases, termination of an employment contract;

Due to a delay due to the employer’s fault in issuing a work book upon dismissal of an employee;

In other cases provided for by the Labor Code of the Russian Federation and other federal laws.

Thus, combat veterans have the right to free education new professions at the place of work, in advanced training courses in the system of state training and retraining of personnel, maintaining wages (in the amount of 100 percent of the tariff rate) at the last place of work during the entire period of training 4.

Citizens of the Russian Federation who were exposed to radiation as a result of nuclear tests at the Semipalatinsk test site are given an additional payment up to the amount of their previous earnings when transferred for medical reasons to a lower-paid job. This additional payment is made by organizations until the ability to work is restored or disability is established 5 .

In cases determined by law, the employer provides employees with:

Guarantees and compensations (for example, when sending an employee on a business trip, combining work with training, the employee retains his place of work (position) and average earnings for the period of absence of the employee);

Only guarantees (saving a job (position) while performing state or public duties). For example, during the period of participation in activities to ensure citizens fulfill their military duty, the employee’s average salary is paid from the funds of the Russian Ministry of Defense.

In a number of cases, the employer provides guarantees, compensation (preservation of the employee’s place of work (position) and average earnings for the period of release from work) and, in addition, the employee receives additional compensation from the federal budget (for example, people's assessors, arbitration assessors) . When guarantees and compensation are provided, the corresponding payments are made at the expense of the employer. Bodies and organizations in whose interests the employee performs state or public duties (jurors, donors, etc.) make payments to the employee in the manner and under the conditions provided for by the Labor Code, federal laws and other regulatory legal acts of the Russian Federation. In these cases, the employer releases the employee from his main job for the period of performance of state or public duties.

The state and the law provide and consolidate guarantees and compensation for employees, as the most vulnerable party labor agreement. We are talking specifically about those who work on . It doesn't matter whether it's urgent or indefinite. If such a document was not signed, we may be talking about a civil contract. And, of course, guarantees and compensation to workers do not apply to the parties to such an agreement. Or maybe this is a case where the employee will be forced to apply.

Thus, guarantees are a mechanism that includes conditions, means and methods for realizing the rights of an employee. These include the legal grounds for entering into labor relations, restoration of illegally violated rights, etc. And compensations are monetary payments to reimburse employees for expenses incurred during the performance of their duties.

Providing guarantees and compensation to workers

Labor legislation establishes general guarantees and compensation that apply when concluding an employment contract, transfers, deductions from wages, as well as special cases of such privileges.

Guarantees and compensation are provided in the following cases:

• business trip;
• fulfillment of assigned state or public duties;
• moving to work in another area;
• combining work with education;
• forced termination of the agreement through no fault of the employee;
• annual;
• in some cases, termination of the employment agreement;
• violation of deadlines for issuing a work book is not the fault of the dismissed employee;
• in other cases, established by law, collective or labor agreement.

Guarantees and compensation for employees on business trips

When sending an employee on a business trip, he is guaranteed:

• preservation of the job - the employer will not dismiss the employee during this period on his own initiative (except for the liquidation of the enterprise), or transfer him to another position;
• the salary is maintained throughout the business trip, taking into account the time spent on the road. In addition, at the discretion of the employee, it may be sent to him at the expense of the organization that sent him;
• reimbursement of expenses - the employer pays for travel, accommodation, and other expenses (as agreed). Daily allowances are paid, and the employee represents financial documents in confirmation.

Guarantees and compensations in the performance of state (public) duties

During the performance of assigned state or public duties, the employer releases the employee from work duties. But he keeps his job. Compensation is paid government agency or public organization, which attracted the employee.

Guarantees and compensation for employees when moving to work in another area

This type of compensation arises if the employer has received the employee’s consent to such a move. The employer reimburses the costs of travel for the employee and his family members; removal of property, excluding cases where the employee is provided with appropriate transport; arrangement costs. The exact amounts of cost reimbursement are determined by agreement. By-laws have been approved for civil servants.

Guarantees and compensation when combining work and education

This method of guarantees and compensation is used by the employer provided:

• state accreditation of an educational institution;
• successful education (no debt);
• receiving appropriate education for the first time;
• combining study and work, if this occurs in several educational institutions, guarantees are provided in one place of study of the citizen’s choice.

The employer is obliged to provide the employee with additional paid benefits. For more details see Art. 173-177 Labor Code of the Russian Federation.

Guarantees and compensation upon termination of an employment agreement

When an employee is transferred to a permanent but lower-paid position due to a medical certificate, the guarantees include maintaining his average salary for a month from the date of transfer. In case of a work injury or occupational disease - until full working capacity or recovery.

In case of temporary loss of ability to work, the employer pays benefits to the employee.

The employer must pay severance pay to the dismissed employee:

1) in the amount of the average salary for two weeks - for citizens if the employment contract is terminated due to:

• inconsistency with the position held or function performed, due to health conditions, making it impossible to continue this work and refuse;
• conscription of an employee to serve in the army;
• reinstatement of the employee who previously performed this work;
• refusal to transfer an employee related to the relocation of the enterprise to another location, etc. (Article 178 of the Labor Code of the Russian Federation).

2) in the amount of the average monthly salary - for citizens, if it is torn due to:

• liquidation of the enterprise;
• reduction in the number of employees;
• violations of the rules established labor legislation, conclusion of an employment contract, which was not the fault of the employee.

Guarantees and compensation to employees in case of delay in issuing a work book or wages

If the deadline for issuing a work book to an employee is violated, compensation is the average daily salary for each delayed day. In addition, the employee may be entitled to compensation for moral damages.

Guarantees and compensation to employees for delayed wages are established in the form, which is paid regardless of the employer’s fault.