How to draw up a liability agreement

What is materiel responsibility

One of the types of legal liability of participants in labor relations is material. Its meaning lies in the obligation of one of the parties to the labor relationship to compensate the other party for the damage caused. It is borne only by employees working under an employment contract (this includes part-time, temporary and seasonal workers).

In order to correctly draw up a liability agreement, let’s look at the conditions under which it occurs:

• illegality of the employee’s actions (inactions);
• direct actual damage to the property of the employer or third parties and costs or excess payments for the acquisition, restoration of property or compensation for damage caused to third parties;
• cause-and-effect relationship between the person’s actions and the damage caused;
• guilt in the form of intent or negligence.

What is considered damage

The employer has the right to hold employees financially liable in the manner established by the Labor Code of the Russian Federation and other federal laws (paragraph 6, part 1, article 22 of the Labor Code of the Russian Federation).

According to Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. It also defines direct actual damage as a real decrease in the employer’s available property or deterioration in the condition of said property, the need for the employer to incur costs or make unnecessary payments. The same applies to the property of third parties held by the employer, if the employer has obligations to preserve this property.

Thus, direct actual damage includes shortage of monetary and property assets, damage to the employer’s equipment and materials, and costs of repairing damaged property.

Article 241 of the Labor Code of the Russian Federation establishes the limits of an employee’s financial liability. The worker is liable within the limits of his monthly earnings, unless an individual liability agreement has been concluded with him, which consists of his obligation to compensate the damage caused to the employer in full.

Read more: How to hold an employee financially responsible.

How to draw up a financial liability agreement

Most often, the agreement is drawn up in addition to the employment contract directly during employment. This does not apply to every employee, but, for example, a position such as a salesperson or cashier initially imposes financial obligations on the employee. The document becomes effective only after voluntary signing by the manager and employee.

It contains a detailed description of the obligations of the parties and their rights. Possible methods of collecting damages, work schedules and other conditions necessary for inclusion are indicated.

Rules for imposing financial liability on an employee

The employee is subject to a presumption of innocence - the employer must prove the fact of causing damage. Thus, he must prove that direct damage occurred as a result of illegal actions or inaction of the employee (he did not fulfill his duties, and because of this property was damaged), and identify the causal relationship between the employee’s actions and the damage caused. All this can be revealed by an inspection initiated by the employer upon the fact of a violation - in the conclusion drawn up based on the results of its work, individual facts should form a complete picture proving the employee’s guilt.

The damage itself must be recorded in the inventory during the inspection, on the basis of which a report will then be drawn up. Its size is determined by the losses incurred. They are calculated taking into account market prices (currently in a given area) and the degree of depreciation of the property.

Individual financial responsibility

Art. 244 of the Labor Code of the Russian Federation provides for compensation to the organization for damage caused by the shortage of property entrusted to the employee in full. This type of contract is concluded only with adult employees who directly serve or use monetary, commodity or material assets, for example, with a cashier. Lists of works and categories and a standard form of an agreement on the employee’s financial responsibility are approved by the Government of the Russian Federation.

What is the financial responsibility of an employee?

Financial liability to the employer exists for all employees. But it can take different forms:

• Limited (Articles 231, 238, 241 of the Labor Code of the Russian Federation), in which an agreement on financial liability is not concluded, the employer has the right to independently recover damages from the employee in a limited amount, and if the amount established by law is exceeded, only through going to court (Article 248 Labor Code of the Russian Federation).
• Full individual (Articles 242, 243 of the Labor Code of the Russian Federation), which arises when the volume of property for which the employee is responsible is easily specified, the employee is provided with the conditions for control over it and the employee is assigned the corresponding responsibility.
• Full collective (Article 245 of the Labor Code of the Russian Federation), which differs from full individual in that a certain amount of property is under the control of a group of persons who are simultaneously assigned this responsibility.

Both types of full financial liability are accompanied by the employer drawing up a written (Articles 244, 245 of the Labor Code of the Russian Federation) agreement on financial liability: in the first case - with each financially responsible person, in the second - with all members of the group. Material assets are transferred to them according to the inventory and are periodically subjected to inventory.

A complete list of positions and work in which either one or another type of responsibility arises is contained in Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85. Examples include:

• for individual - cashier, storekeeper, forwarder, driver;
• for a collective one - a team of sellers, a team of builders or storekeepers.

Is it possible to hold the chief accountant financially liable? The answer to this question was given by Ministry of Labor specialist T.V. Malenko. Get free trial access to the ConsultantPlus system and get acquainted with the official’s point of view.

It is advisable to draw up an agreement on financial responsibility either simultaneously with the appointment of an employee to a position involving corresponding responsibility, or when starting work with this responsibility. Persons under 18 years of age are not allowed to enter into such agreements (Article 244 of the Labor Code of the Russian Federation).

All the nuances of the relationship between the employer and employees regarding financial liability can be systematized in an internal regulatory act.

Do you have any doubts about how to correctly carry out this or that procedure related to personnel records management? On our forum you can dispel any doubts. So, here you can clarify with whom and in what form an employment contract with financial responsibility is required.

Full financial responsibility

It consists of the employee’s obligation to compensate for all damage caused to him in full. Established only for employees over 18 years of age. In the following cases, no additional documents are required, i.e. it occurs automatically:

• intentional causing of damage;
• state of alcoholic or other intoxication during the commission of the offense;
• criminal acts established in court;
• disclosure of commercial, state or other secrets protected by law;
• committing an administrative offense;
• causing damage not during the performance of official duties.

Who to enter into contracts with?

Full responsibility rests with the employee in the following cases:

• according to current legislation, the employee is entrusted with property obligations in full for damage caused to the employer during the performance of his job duties;
• shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
• intentional causing of damage;
• causing damage while under the influence of alcohol, drugs or other toxic substances;
• causing damage as a result of criminal actions of an employee established by a court verdict;
• causing harm as a result of an administrative violation, if established by the relevant government body;
• disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
• causing damage while the employee was not performing his or her job duties.

Financial liability in the full amount of damage caused to the employer is allowed to be established by an employment contract concluded with the deputy heads of the organization and the chief accountant.

IMPORTANT!

Employees under the age of 18 bear full financial liability only for intentional harm, for damage caused while under the influence of alcohol, drugs or other toxic substances, and for damage caused as a result of a crime or administrative violation.

Employers are allowed to enter into an agreement on individual financial liability only with an employee of a certain category from the List of positions and work replaced or performed by employees, approved by Resolution of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

The list consists of two sections. The first indicates positions that require the conclusion of individual agreements with the employees replacing them. The second section lists the types of work the implementation of which allows the employer to record the corresponding property obligations of employees.

IMPORTANT!

The employer does not have the right to enter into a written agreement on financial responsibility if the employee’s position or the specific work assigned to him is not provided for in the specified List.

Collective responsibility

Provides for an equal distribution of obligations among all members of the team, if it cannot be assigned to one person. For an agreement on material liability to be valid, it is necessary to initially conclude an appropriate written agreement with members of the team on the form and conditions for the application of material liability.

Occurs when a team performs certain types of work on storage, processing, sale, transportation, use or other use of transferred values, and if it is not possible to delimit the financial responsibility of an individual team member and conclude an agreement with him on compensation for damage in full.

Agreement on full financial responsibility

Agreement on full individual financial liability No. _____ _____________ “____” _______________ LLC “__________”, hereinafter referred to as the “Employer”, represented by the General Director ________________., acting on the basis of the Charter, on the one hand and _____________________________, hereinafter referred to as the “Employee” ", on the other hand, collectively referred to as the "Parties", have entered into this Agreement as follows. 1. Subject of the Agreement 1.1. The Employee assumes full individual financial responsibility for the shortage of property entrusted to him, as well as for losses incurred by the Employer in connection with compensation for damage to other persons. 1.2. The Employer creates for the Employee the conditions necessary for the proper fulfillment of obligations under this Agreement. 2. Rights and obligations of the Parties 2.1. The employee has the right: 2.1.1. Accept the entrusted property and control its storage, processing, sale (release), transportation and use in production. 2.1.2. Participate in inventory, audit, and other verification of the safety of entrusted property. 2.1.3. In special cases, such as theft, natural disaster, damage to goods, etc., require the Employer to take an inventory of the entrusted property. 2.2. The employee is obliged to: 2.2.1. Treat the entrusted property with care and take measures to prevent damage. 2.2.2. Record, compile and submit reports on the movement and balances of property. 2.2.3. Promptly notify the Employer of all circumstances that threaten the safety of property. 2.3. The employer has the right: 2.3.1. In case of damage or shortage of property, recover damages from the Employee in the manner specified in Section 4 of this Agreement. 2.3.2. Check the availability and condition of property in the manner prescribed by law. 2.4. The employer is obliged: 2.4.1. Create for the Employee the conditions necessary to ensure the safety of the entrusted property. 2.4.2. Timely identify and eliminate the reasons that prevent the Employee from ensuring the safety of property, identify those responsible for causing damage and bring them to justice in accordance with the law. 2.4.3. Familiarize the Employee with the provisions of the current legislation on financial liability for damage caused to the Employer, and with other legal acts (including local ones) on the procedure for storage, processing, sale (release), transportation, use in production and other operations with transferred property. 2.4.4. Provide the Employee with the conditions necessary for timely accounting and reporting on the movement and balance of property. 2.4.5. Take into account the Employee’s requirements for an inventory of property. 2.4.6. Analyze the reasons that threaten the safety of property reported by the Employee and take measures to eliminate them. 3. Procedure for accounting and reporting 3.1. Reception, accounting and reporting of property is carried out by the Employee in accordance with the order of the General Director. 3.2. Inventory (scheduled and unscheduled) of property is carried out by a specially appointed commission within the time limits established by law. 3.3. Reports on the movement and balance of property are signed by the Employee and transferred to the Employer. 4. Compensation for damage 4.1. The basis for bringing the Employee to financial liability is the direct actual damage caused by him, as well as losses incurred by the Employer in connection with compensation for damage to other persons. 4.2. An employee is released from financial liability if it is established that the damage was not his fault. 4.3. Actual losses are determined based on market prices valid on the day the damage was caused, but cannot be lower than the value of the property according to accounting data, taking into account depreciation. 4.4. The procedure for compensation for damage is regulated by current labor legislation. 4.5. This Agreement comes into force on the day of signing and is valid for the entire period for which the Employee is entrusted with the property. 4.6. This Agreement is drawn up in two copies having equal legal force, one for each of the Parties. 4.7. Changes to the terms of this Agreement, addition, termination or termination are possible only by written agreement of the Parties, which is an integral part of this Agreement. 5. Addresses and details of the Parties

Restrictions

This type is regulated by Art. 241 of the Labor Code of the Russian Federation and is applied most often in cases where harm was caused in the performance of work duties as a result of negligence or imprudence.

Penalties are made in the amount established by law. The main difference from others is the possibility of attracting minor employees.

After identifying the fact, it is necessary to check whether the person is subject to full financial liability; if not, then losses are compensated within the limits of average earnings.

Contract form

DMO is issued only in writing.
It is drawn up in 2 copies (one is given to the employee, the second is kept by the head of the enterprise) and it must have the signatures of both the manager and the employee. The DMO is drawn up simultaneously with the execution of the employment agreement or later, after the appointment of the employee to the corresponding position, along with the transfer of the company’s assets to him under the acceptance certificate. At the same time, according to the definition of the Plenum of the Armed Forces of the Russian Federation No. 2 of March 17. 2004, an employed person does not have the right to refuse to sign the DMO.

Note. If the job description of an employee relates to the storage of valuables and an employment agreement has been drawn up with him, then refusal to sign the DMO is considered a failure to fulfill his labor functions. Such a circumstance may force the head of the institution to transfer the employee to another vacancy or fire him.

DMO can be individual, i.e. issued with an individual employee, or collective, if it is impossible to determine the responsibility of each employee for losses caused (Article 245 of the Labor Code of the Russian Federation).

Resolution of the Ministry of Labor of the Russian Federation No. 85 dated December 31, 2002 determined the List of works and positions, including samples of DMO templates. At the same time, adjustments can be made to the proposed templates without worsening the employee’s situation.

Who needs a liability agreement in 2021?

At any enterprise, there is at least one employee who is responsible for the integrity of the enterprise’s values ​​entrusted to him.
Therefore, first of all, the employer is interested in registering voluntary medical insurance with a subordinate. It is he who initiates the registration of DMO with his subordinate (Article 244 of the Labor Code of the Russian Federation).

Such an agreement is drawn up for the purpose of:

1. Increasing the level of official responsibility for the property of the enterprise.
2. Possibility of collecting compensation from the offender for damages caused.

Registration of DMO is the right of the employer. Legislative norms do not regulate the mandatory execution of such a document. However, in the absence of a signed DMO, even if the employee is clearly at fault, the employer will not be able to recover damages from the subordinate, unless he manages to withhold from the offender only one average monthly salary (Article 241 of the Labor Code of the Russian Federation).

Also, the employer’s subordinate is also interested in completing the DMO. The executed agreement will not allow abuses on the part of the head of the enterprise when compensating for losses.

What should the contract contain?

The law does not define any requirements for a liability agreement. Typically, each company draws up a standard template in which it indicates all the essential conditions of its day, and which, however, should not contradict the Labor Code.

The contract must begin with an indication of its name, as well as the place and date of its execution.

The next step is to identify each party to the contract. The company must indicate its name, information about the director, as well as the document on the basis of which he conducts his activities. For an employee, here you must indicate the position title and his full name.

Next, it is necessary to indicate in detail the responsibilities of the person to ensure the safety of the property. For example, here we can mention the obligation to document each movement of material assets, periodic inventory, etc.

Then it is necessary to describe the measures that the employer himself is taking to protect his property. For example, this may include installing a safe, equipping the premises with a security alarm, engaging a third-party security company (PSC), etc.

The contract must mention the provision of the employee with a job description and other documents establishing the need for full financial responsibility.

Next, it is necessary to indicate the cases in which the employee will be held financially liable. Situations in which such liability does not arise should be separately identified - for example, in the event of natural disasters, forced defense, etc.

Attention! The contract must indicate the number of copies in which the contract was drawn up, the procedure for its termination or extension for a new term.

The agreement must be completed with the details of each party, signatures and seals.

Papers required to recover damages

The recovery of material damage may be declared illegal if its procedure is violated; to prevent this from happening, it must be carried out carefully . Usually it consists of several successive stages, each of which is formalized by the publication of relevant documents:

• memorandum. The fact of damage is established by any employee who discovers it, which is reported to the employer either orally or in the form of a memorandum submitted to him, drawn up in free form and registered in the incoming correspondence log . From this moment on, the manager is considered to be notified of the event;

• inventory act. Audit documents are filled out by accounting employees who are members of the commission, the form of audit documentation is approved by Order of the Ministry of Finance of the Russian Federation dated June 13, 1995 N 49;
• demand for explanations. The requirement for the employee to provide a written explanation of the incident that occurred is mandatory on the basis of Part 2, Article 247 of the Labor Code of the Russian Federation; The notification is handed in against signature . If the employee refuses to sign for its receipt, an act signed by several employees is drawn up certifying the refusal. In the absence of such a document, the employer will not be able to prove in court that the procedure for applying penalties to the employee was fully complied with.
• explanatory letter. If the employee is ready to give the appropriate explanations, he must provide them in writing, putting his signature and indicating the date of preparation. The form of presentation is free ;
• act of failure to provide explanations. If the employee does not give an explanation within two days after receiving the notification, a report is drawn up about this. By failing to draw up this report or by drawing it up earlier than two working days after the notification is delivered, the employer risks being accused of applying punitive measures to the employee in violation of the procedure ;
• order to create a commission. To establish the causes and extent of the damage caused and resolve the issue of imposing penalties, the manager must conduct a special check of all the circumstances of the case, in accordance with Part 1 of Art. 247 TK. For this purpose, a special commission is being created. The order for its creation is agreed upon and endorsed by any method accepted in the organization ;
• official inspection report. After the inspection, the commission issues a document that records all the measures taken . In addition, the conclusions of the commission are indicated with references to the norms of law and local acts of the organization . It must be signed by all representatives of the commission, otherwise its conclusions may be challenged in court, and the employer’s actions may be declared unfounded. The final decision of the manager in relation to the employee guilty of harm caused to the organization is most often expressed in the form of a resolution on this document;
• order for damages. At the request of Part 1 of Art. 248 of the Labor Code, damage, the amount of which is lower than or equal to the amount of the employee’s average monthly salary, is withheld by order of the manager within a month from the date of the decision on recovery;

If the month period or refuses to compensate for the damage caused to the enterprise, if the fine exceeds the average monthly salary, the employer will be able to receive the amount of recovery only through the court .

• obligation to compensate for damage. Part 4 of Article 248 of the Labor Code explains that if an employee is ready to compensate for the damage, but asks for the possibility of paying the fine in installments , he will write an obligation to reimburse the debt, which will outline the terms of its repayment . If the employee refuses to fulfill these obligations after dismissal, the unpaid amount of damages will be subject to recovery in court .

How to conclude an agreement?

Drawing up an agreement on full financial liability is not an obligation for the employer. Therefore, he can be the initiator and conclude it with the consent of the employee or not conclude it.

But the employer may stipulate the need to formalize the agreement with a special condition in the employment contract, which is concluded upon hiring. If an employee agrees to fulfill the assigned job duties, then he has no right to evade signing an agreement on full financial responsibility. Refusal to do this entails failure to fulfill job duties with corresponding consequences.

The form of the document is standard and approved by Resolution of the Ministry of Labor dated December 31, 2002 No. 85. It contains standard wording, conditions and obligations of both parties. The form requires that the agreement be concluded in writing.

Financial liability and its types

Financial liability is the employee’s obligation to compensate for damage caused to the employer’s property. In general, only direct actual damage is subject to compensation, that is, the employer’s expenses for purchasing new property to replace destroyed property or repairing damaged property. Lost profits are not compensated (Part 1 of Article 238 of the Labor Code of the Russian Federation).

In some cases, the manager compensates not only the direct actual damage caused by him to the organization, but also lost profits (Part 2 of Article 277 of the Labor Code of the Russian Federation).

Financial liability is:

• Limited.