Employer's liability: what will the cost of violating labor laws

Article 419 of the Labor Code of the Russian Federation states that persons guilty of violating labor legislation and other acts containing labor law norms are held accountable in the manner established by the Labor Code and other federal laws. There are different types of liability: material, disciplinary, administrative and even criminal.

Let's consider what threatens violators.

Read on topic:

When can a company be punished for refusing employment?

What types of responsibilities does an employer have to an employee?

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains instructions for bringing persons guilty of violating labor legislation to five types of liability. Among them, four can be identified that apply to the employer (with the exception of disciplinary):

• material
• civil law
• administrative
• criminal

First of all, if we talk about the employer’s responsibility to the employee, we mean material and civil liability. As for administrative and criminal liability, it arises from the employer to the state. However, often such liability arises precisely for violation of the employee’s labor rights. Therefore, in this series of articles we will also briefly consider these two types of responsibility.

Disciplinary liability can only arise from the employee, so there is no place for it in the article.

Who can be held liable

For non-compliance with labor legislation, various persons may be subject to sanctions (including, but not limited to):

1. An employing organization acting as a legal entity in relevant legal relations.
2. Directly the worker himself.
3. State labor inspectors (stat. 364 of the Labor Code of the Russian Federation).
4. Heads of employing enterprises (stat. 362 of the Labor Code of the Russian Federation).
5. Parties receiving persons temporarily sent to them for the purpose of carrying out activities from other employers (Article 341.5 of the Labor Code of the Russian Federation).
6. Members of brigade teams (stat. 245 of the Labor Code of the Russian Federation).
7. Heads of structural divisions of the employing company, their deputies (stat. 195 of the Labor Code of the Russian Federation).
8. Participants in collective bargaining (stat. 37 of the Labor Code of the Russian Federation).

Financial liability of the employer to the employee

General provisions on the employer’s financial liability are contained in Section XI of the Labor Code of the Russian Federation. The essence of financial liability lies in the obligation of the party to the employment contract (in our case, the employer), who caused damage to the other party (in our case, the employee), to compensate for this damage.

According to Art. 233 of the Labor Code of the Russian Federation, for the onset of financial liability, the following conditions must be met:

• the presence of property damage to the injured party;
• illegality of the action (inaction) that caused the damage;
• causal connection between the unlawful act and property damage;
• guilt in committing an unlawful act (inaction), unless otherwise expressly provided for by the Labor Code or other federal law.

Chapter 38 of the Labor Code discusses four grounds for the employer’s liability:

1. illegal deprivation of an employee's opportunity to work,
2. causing damage to his property,
3. delay of salaries and other payments,
4. causing moral harm to an employee.

For more information about the obligations and consequences for the employer caused by such circumstances, read the articles “Material and civil liability of the employer to the employee”, “Responsibility of the employer for improper payment of wages and other amounts due to the employee”.

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In the normal business activities of an organization[1], circumstances often arise in which harm is caused by an individual in the performance of his official duties. For example, this could be harm from the actions of an employee-driver as a result of an accident (one of the most common types of harm in practice), or liability for the sudden interruption of negotiations, which is still new for civil legal relations in Russia[2].

At the same time, the law provides for the liability of a legal entity for damage caused by an employee performing his direct labor functions. As a rule, such harm is expressed in material losses on the part of the victim and is recovered from companies in court, which determines the significant role of judicial practice in this matter. This article analyzes disputes considered by arbitration courts of the Russian Federation, where the parties were legal entities.

In accordance with paragraph 1 of Article 1068 of the Civil Code of the Russian Federation, a legal entity or citizen compensates for damage caused by its employee in the performance of labor (official, official) duties. In this case, it is extremely important that for the purposes of compensation, employees are recognized not only as citizens performing work on the basis of an employment agreement (contract), but also as citizens performing work under a civil law contract, if they acted or should have acted under assignment of the relevant legal entity or citizen and under his control for the safe conduct of work.

Article 1068 of the Civil Code of the Russian Federation proceeds from the fact that the actions of an employee, carried out under the control and on the instructions of the employer, from the point of view of legal relations are perceived as the actions of the legal entity itself. This assumption is logical, since a legal entity can carry out its activities exclusively through employees whom it delegates with functions determined by an employment contract (or assignment). Accordingly, it is presumed that the actions of the employee manifest the will of the legal entity as the employer. In other words, if an employee, while performing his official duties, caused harm through his actions, then for the victim such harm will be caused by a legal entity.

It is worth considering that the employer's liability is not absolute. From the analysis of judicial practice it follows that in order for a legal entity to become liable in such a situation, it is necessary to prove a number of elements, which can be conditionally divided as follows:

— circumstances necessary for compensation of losses from the employer (special circumstances);

— circumstances necessary to recover damages (general circumstances).

Based on this, the subject of proof in cases of recovery from the employer of losses caused by the actions of employees includes establishing the fact of the existence of an employment relationship and the infliction of harm by the employee in the performance of his duties or official assignment (special circumstances). In addition, the person collecting damages must prove the presence of all the necessary elements to recover damages: the illegality of the actions of the harm-doer, the causal connection between the illegal actions and the resulting damage, the presence and amount of losses incurred (general circumstances). Judicial practice in considering such cases contains certain features, which we discuss below.

Special circumstances

1. Labor relations

The first issue that needs to be addressed is that the legislator, for the purposes of Article 1068 of the Civil Code of the Russian Federation, gave a broad interpretation to the concept of “employee”. Thus, an employee is considered not only a person with whom an employment contract has been concluded, but also a person who is a party to a civil contract and at the same time performs the order of the customer. The key factor here is the control of a legal entity over the implementation of production actions, expressed either in the presence of an employment contract or a civil law contract.

When considering such cases in court, it is necessary to take into account that the fact of the existence of labor or civil law relations between the person who caused the harm and the legal entity must be established by appropriate evidence - an employment contract, a copy of the work book, the organization’s staffing table [3], information obtained from Pension Fund of the Russian Federation[4].

As a rule, the plaintiff does not possess such documents. In this case, if the defendant-employer refuses to provide the necessary documents, the plaintiff may petition the court to demand such evidence. This right is provided for by procedural legislation (Article 66 of the Arbitration Procedure Code of the Russian Federation). It is worth noting that such a petition must indicate the reasons for the impossibility of obtaining evidence - the mere absence of documents from the plaintiff does not indicate the impossibility of obtaining them. To reduce the risk of refusal to satisfy the petition, it is most preferable to send a preliminary request to the defendant asking him to provide such documents. If such a request is refused or ignored, such correspondence must be attached to the petition.

If an employee commits an offense, references to materials from administrative or criminal cases (for example, to witness testimony or a resolution in a case of an administrative offense) are, as a rule, not considered by arbitration courts as evidence of the existence or absence of an employment relationship for the purposes of resolving disputes in accordance with Article 1068 of the Civil Code of the Russian Federation[5]. Moreover, such materials can act as confirmation of other circumstances included in the subject of proof (for example, the illegality of the actions of the harm-doer, the causal connection between illegal actions and the resulting harm, etc.).

Actually existing labor relations

In some cases, arbitration courts, and in the absence of information about labor or civil legal relations, recognize that an actual labor relationship has developed between the tortfeasor and the company from which the damage is being recovered. Thus, in a case regarding the recovery of damage caused to a car by a car wash employee, the court found that no employment or civil contract had been concluded between the legal entity and the employee. However, in the case materials there was evidence that the person who caused damage to the car was during working hours on the territory of the car wash in uniform, received wages in this territory, received instructions from other car wash employees and actually performed labor duties (that is, provided services for washing cars). The court, having established these circumstances, came to the conclusion that the employment relationship had actually developed, which means the employer is responsible for the actions of such an employee[6].

When assessing such circumstances, the courts are guided by Part 3 of Article 16 of the Labor Code of the Russian Federation, which provides that labor relations between an employee and an employer also arise on the basis of the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative in the case where there was no employment contract properly formatted. For example, the court found that a contract for the performance of work was concluded between a legal entity and an individual, according to which the contractor “undertook to perform, on the instructions and under the control of the defendant, the obligations stipulated by the contract, which largely corresponds to the definition of the concept of an employment contract.” The court indicated that the absence of formalized labor relations between the organization and a third party is not a basis for releasing him from liability in the form of compensation for damage, since the relations that arose between them are equated by law to labor relations[7]. It is worth noting that such examples in judicial practice are still quite rare.

Responsibility of the organization when engaging external personnel

In judicial practice, there are also situations where harm is caused by an employee performing his work duties in accordance with the requirements of a third party - the so-called “outstaffing” or “secondment”. For example, a legal entity enters into an agreement with a company that provides personnel services (most often these are specialized recruitment agencies), and one of the employees of such a company causes damage. In such cases, the courts examine the contract for the provision of personnel between legal entities and establish who exactly sends orders to employees to perform their labor duties[8]. Most often, courts recover damages from the employer, that is, from the organization providing personnel services[9], however, judicial practice on such disputes is not yet established.

2. Job responsibilities

According to the position of the Supreme Court of the Russian Federation[10], causing harm must be directly related and associated with actions of a production or technical nature in their relationship with the employee’s labor or official duties. Accordingly, in practice, to resolve disputes regarding the recovery of damages from the employer, the courts compare the employee’s action that led to the harm and his direct job responsibilities.

At the same time, arbitration courts often use the explanations given by the judicial panel for civil cases of the Supreme Court of the Russian Federation in Determination No. 64-KG14-1 dated March 14, 2014, which indicates that “one of the conditions for the employer’s liability is the infliction of harm by the employee precisely during the performance of his labor ( official, official) duties, that is, harm is caused not just during the performance of work duties, but in connection with their performance. Such actions include actions of a production (economic, technical) nature, the commission of which is included in the scope of the employee’s labor responsibilities under an employment contract or civil law contract. That is why the employee’s actions are regarded as the actions of the employer himself, who is responsible for the harm.” Therefore, when considering cases of recovery from an employer for damage caused by an employee, the courts examine the direct labor or official responsibilities of the employee.

Let's consider an example from judicial practice. Thus, in a situation where damage to the barrier was caused by a security guard who was at his workplace, but manipulations with the barrier were not part of his job duties, the employer’s liability is excluded. As the court pointed out, “neither the job description nor the official duties stipulate the obligation for the operation and protection of the automatic barrier by the defendant’s employees. The case materials do not contain evidence that, when lowering the barrier, the security guard acted on the instructions of LLC POO Leader. The foregoing excludes the possibility of imposing civil liability on LLC Private Limited Liability Company “Leader” in the absence of the latter’s fault”[11].

In practice, there are often situations where an employee has committed an offense that has resulted in damage. In this case, the courts refuse to recover damages from the employer, explaining the following: “due to their illegal nature, the criminal actions of the employee, by their legal nature, cannot be included in the scope of his labor or official duties and be related to production needs in connection with the work process. A crime is committed by an employee as a result of criminal intent, for selfish purposes, against the will and interests of the employer and without his knowledge. In this regard, in the absence of signs of unlawful behavior of the employer himself, he cannot be held liable for harm caused by his employees”[12].

General circumstances

Recovery of damages is a measure of civil liability. Therefore, courts, when considering cases of damages, require the person collecting damages to prove certain facts, called damages.

In accordance with Articles 15, 1064 and 1068 of the Civil Code of the Russian Federation, in a claim for compensation for damage, the plaintiff must prove the following circumstances:

- fact of causing harm,

- illegality of the behavior of the harm-doer,

— a cause-and-effect relationship between the behavior of the harm-doer and the resulting harm,

- guilt of the harm-doer,

- amount of losses.

Moreover, in accordance with the provisions of the specified articles of the Civil Code of the Russian Federation, the requirement for compensation for harm can be satisfied only if the totality of all the above elements of liability is established. The absence of one of the elements entails a refusal to recover compensation for the harm caused.

Thus, in cases of recovery from an employer for damage caused by an employee, these elements must be examined by the court.

When considering such cases, special attention must be paid to the presence of a cause-and-effect relationship confirming that it was the actions of the company’s employees that caused the damage being recovered. As stated above, a claim for damages is often made after proceedings have been initiated against an employee in connection with an offence. In such cases, the materials of the administrative or criminal case must contain a conclusion that some actions caused damage. If the case materials do not contain such explicit confirmation, the courts refuse to recover damages from the employer[13].

conclusions

Thus, when seeking compensation for damages from an employer in court for the actions of an employee, the courts must examine the fact of the existence of an employment relationship between the legal entity and the prospective employee. At the same time, when going to court, it is also possible to refer to the available evidence of actual labor relations.

Also, in such a trial, it is necessary to examine the fact of whether the actions that caused harm are part of the employee’s job duties or his direct job assignment. In addition to the specified “special requirements” related to labor relations, for successful recovery it is necessary to prove the presence of all elements of damages.

By proving the above facts, you can successfully recover damages incurred in connection with the actions of a company employee.

Employers, in turn, need to take into account that one of the ways to reduce the risk of collecting damages for the actions of employees can be detailed documentation of labor responsibilities (in a contract, in a job description or a civil contract), as well as the most effective control over the activities of employees, especially if his work functions are associated with sources of increased danger. In this case, if the employee makes any deviations from his job duties, or commits actions not directly related to them, then the employer will have the opportunity to prove that he should not be held responsible for such actions of the employee.

[1] In this article, only a legal entity will be considered as an employer, although the legislator provides for liability, including for employers - individuals.

[2] Responsibility for unfair negotiations is provided for in Article 434.1 of the Civil Code of the Russian Federation. Although the norm came into force on June 1, 2015, the practice of its application is currently just being formed. At the same time, the Supreme Court of the Russian Federation, in Resolution of the Plenum of March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations,” directly indicated the employer’s obligation to compensate for damage caused by its employee.

[3] Resolution of the Ninth Arbitration Court of Appeal dated April 1, 2016 in case No. A40-148168/15

[4] Resolution of the First Arbitration Court of Appeal dated October 31, 2016 in case No. A11-11251/2015.

[5] Resolution of the Sixth Arbitration Court of Appeal dated November 27, 2015 in case No. A73-154/2015; Resolution of the Tenth Arbitration Court of Appeal dated May 29, 2015 in case No. A41-67303/14.

[6] Resolution of the Second Arbitration Court of Appeal dated March 15, 2013 in case No. A28-5806/2012.

[7] Resolution of the Seventeenth Arbitration Court of Appeal dated February 29, 2016 in case No. A60-33292/2015.

[8] Resolution of the Seventh Arbitration Court of Appeal dated December 11, 2015 in case No. A03-14794/2015.

[9] Resolution of the Thirteenth Arbitration Court of Appeal dated January 15, 2014 in case No. A56-53407/2013.

[10] Ruling of the Supreme Court of the Russian Federation dated December 21, 2015 in case No. A21-5073/2014.

[11] Resolution of the First Arbitration Court of Appeal dated October 22, 2012 in case No. A39-1890/2012.

[12] Resolution of the Arbitration Court of the Volga District dated 05/12/2016 in case No. A57-9424/2015, resolution of the Sixteenth Arbitration Court of Appeal dated 09/25/2015 in case No. A22-2358/2014.

[13] Resolution of the Arbitration Court of the North-Western District dated 09/06/2016 in case No. A56-62005/2015, resolution of the Arbitration Court of the Far Eastern District dated 04/13/2016 in case No. A59-2296/2015.

The article is available at the link: https://fd.ru/articles/158988-otvetstvennost-rabotodatelya-za-vred-prichinennyy-ego-rabotnikom-prakt…

Civil liability of the employer to the employee

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of liability of the employer to the employee occurs in cases where he is liable for the specified violation according to the norms of civil rather than labor legislation.

In this case, the mechanisms for protecting the rights of the employee are reflected in Articles 15 and 151 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and consist of the following norms:

• An employee whose rights have been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.
• If a citizen has suffered moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

As we see, the civil liability of the employer, like material liability, consists mainly in the imposition of property sanctions on him. In this regard, these two types of responsibility are often confused and even combined. According to some legal scholars, financial liability is in fact civil liability (S.S. Alekseev, S.N. Bratus, R.O. Halfina, etc.).

However, despite many common features, these two types of liability have significant differences. For example, if financial liability obliges the employer to compensate direct effective damage to the employee, then Art. 15 of the Civil Code of the Russian Federation provides for compensation not only for actual damage, but also for lost income (lost profits) that this person would have received under normal conditions of civil circulation if his right had not been violated. Thus, in the case of compensation by the employer for expenses associated with the temporary disability of an employee (to the extent that exceeds the insurance coverage), compensation for losses to the employee is of a purely civil nature, and not material. Read more about this in our article: “The employer’s obligation to compensate the employee for harm in case of loss of ability to work.”

You can read more about the distinctive features of the employer’s material and civil liability to the employee in the article of the same name.

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Responsibility of the employee.

Let's start with employees, since their responsibility is slightly less than that of employers.

Disciplinary responsibility.

This is perhaps the most common type of employee liability for violation of labor laws. According to Art. 192 of the Labor Code of the Russian Federation for committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply disciplinary sanctions: reprimand, reprimand, dismissal.

It would seem, how are labor discipline and labor legislation related? Very cramped. After all, in Art. 22 of the Labor Code of the Russian Federation, which establishes the basic rights and responsibilities of an employee, states that he is obliged to:

• conscientiously fulfill the labor duties assigned to him by the employment contract;
• comply with internal labor regulations;
• observe labor discipline;
• comply with established labor standards;
• comply with occupational health and safety requirements.

Accordingly, failure to comply with labor discipline is a violation of labor legislation.

When applying disciplinary measures, the employer must follow a certain procedure - it is established by Art. 192, 193 Labor Code of the Russian Federation. Otherwise, even though the employee actually committed an offense, the application of disciplinary measures may be considered illegal, which may lead to negative consequences for the employer. Imagine: you fired an employee for absenteeism. They hired a newcomer in his place. However, the person dismissed through the courts was reinstated at work. In this case, the employer is obliged to comply with the court decision. To do this, you will have to fire the newcomer, pay compensation to the reinstated employee for forced absence, and maybe for moral damages.

Let us briefly recall the algorithm for applying disciplinary measures:

1. If a disciplinary offense is detected, it must be documented - in a report, memo, act, etc.

2. Request an explanation of the reasons for the misconduct (preferably in writing) and wait two working days for them. If you refuse to give an explanation, you must draw up an act attesting to this fact.

3. Assess the validity of the reasons for committing the offense. If they turned out to be valid, refuse to apply liability measures.

4. Apply disciplinary measures within a month from the date of discovery of the offense and no later than six months from the date of its commission (based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of its commission).

Note:

The use of a last resort - dismissal - to pregnant women is not allowed. They are protected by labor legislation and will definitely be reinstated at work (Article 261 of the Labor Code of the Russian Federation).

Material liability.

Sometimes, due to violation of labor laws, in particular, improper performance by an employee of his job duties, damage to the employer’s property may be caused. In this case, the employer has the right to recover the amount of such damage from the employee. However, as in the case of disciplinary liability, in order to compensate for monetary losses, the employer must follow the procedure and fulfill the requirements defined by the Labor Code.

Let us recall that on the basis of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee. For example, direct actual damage may include a shortage of monetary and property assets, damage to the employer’s equipment and materials, and costs of repairing damaged property.

Note:

As a general rule, an employee bears financial liability for damage caused within the limits of his average monthly earnings. However, in the cases established by Art. 243 of the Labor Code of the Russian Federation, the full amount of damage can be recovered from the employee (for example, in the event of a shortage of valuables entrusted to the employee on the basis of an agreement on full financial liability, or when damage to property was caused while intoxicated).

For clarity, let us present the procedure for holding an employee financially liable in the diagram.

Please note that disciplinary and financial liability measures can be applied to an employee simultaneously. For example, an employee showed up to work intoxicated, became rowdy, and as a result dropped his laptop from his desk and it broke. In such a situation, the employer has the right:

• apply disciplinary measures up to and including dismissal (clause “b”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
• apply financial liability measures and recover the cost of the broken laptop.

Administrative responsibility.

This responsibility is established only for foreign citizens who may illegally carry out labor activities in our country. According to Art. 18.10 of the Code of Administrative Offenses of the Russian Federation provides for fines and deportation from the Russian Federation for such citizens.

Employer's liability.

Article 362 of the Labor Code of the Russian Federation determines that managers and other officials of organizations guilty of violating labor laws are liable in cases and in the manner established by the Labor Code and other federal laws. However, not only the named individuals can be held accountable - the organization can also be punished for violations. Let's look at who is held accountable and for what.

Material liability.

According to Art. 232 of the Labor Code of the Russian Federation, the party to the employment contract (employer or employee) who caused damage to the other party is obliged to compensate for this damage in accordance with the Labor Code of the Russian Federation and other federal laws. And first of all, the employer is responsible for damage caused to the employee’s property (Article 235 of the Labor Code of the Russian Federation).

For your information:

By virtue of Art. 235 of the Labor Code of the Russian Federation, an employer who causes damage to an employee’s property shall compensate it in full. The amount of damage is calculated at market prices in force in the area on the day of compensation. If damage occurs, the employee must contact the employer with a written statement, the latter is obliged to consider it and make an appropriate decision within 10 days from the date of receipt of the statement.

And the employer also answers:

1. For damage caused to an employee as a result of illegal deprivation of the opportunity to work (Article 234 of the Labor Code of the Russian Federation). The obligation to pay lost earnings arises if earnings are not received as a result of:

• illegal removal from work, dismissal or transfer to another job (Articles 72, 73, 76, 394 of the Labor Code of the Russian Federation);
• the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job (Article 396 of the Labor Code of the Russian Federation);
• delay by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant formulation of the reason for dismissal of the employee (Article 84.1, 394 of the Labor Code of the Russian Federation).

2. For causing moral harm (Article 237 of the Labor Code of the Russian Federation). According to Art. 151 of the Civil Code of the Russian Federation, moral harm is the physical or moral suffering of a citizen caused to him by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to him. Compensation is made in cash in amounts determined by agreement of the parties to the employment contract. If the amount of compensation is not regulated by agreement between the employee and the employer, the damage is assessed by the employee himself, and the specific amount is determined by the court.

3. For delay in payment of earnings and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation). Let’s take a closer look here, since the legislation in this area has recently been adjusted:

• salary. According to the changes that came into force on October 3, 2016[1], Part 6 of Art. 136 of the Labor Code of the Russian Federation now reads as follows: “salaries are paid at least every half month. The specific date for payment of wages is established by internal labor regulations, a collective agreement or an employment contract no later than 15 calendar days from the end of the period for which it was accrued.” Previously, the wording was slightly different and obligated employers to pay wages twice a month;
• vacation pay. By virtue of Part 9 of Art. 136 of the Labor Code of the Russian Federation, payment for vacation is made no later than three days before its start;
• payments upon dismissal. According to the general rule of Art. 140 of the Labor Code of the Russian Federation, payments due to an employee upon dismissal are made on the day of dismissal, and if the employee is absent on this day, then the calculation is made no later than the next day after the employee submits the corresponding request.

So, for violation of the terms of payment of amounts due to the employee, the employer is obliged to pay them with interest - monetary compensation. According to the amendments to Art. 236 of the Labor Code of the Russian Federation, the amount of this compensation has been increased and amounts to 1/150 (previously - 1/300) of the key rate of the Central Bank of the Russian Federation in force at that time from the amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement, inclusive .

Now, instead of the refinancing rate, interest is calculated based on the key rate. Currently it is 10%.

Law No. 272-FZ also introduced liability for partial payment of amounts due to the employee: the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time (Article 236 of the Labor Code of the Russian Federation).

Remember that the obligation to pay monetary compensation for violation of the payment deadline arises regardless of whether the employer is at fault.

Administrative responsibility.

This type of liability is established by the Code of Administrative Offenses of the Russian Federation. First of all, let's say that such liability comes for committing an administrative offense.

For your information:

An administrative offense is an unlawful guilty action (inaction) of an individual or legal entity for which administrative liability is established by the Code of Administrative Offenses of the Russian Federation or the laws of the constituent entities of the Russian Federation on administrative offenses (Article 2.1 of the Code of Administrative Offenses of the Russian Federation).

An employer is found guilty of committing an administrative offense if it is revealed that he had the opportunity to comply with the rules and regulations, but he did not take all measures within his power to comply with them.

Administrative punishment for violation of labor legislation may follow within a year from the date of commission of the administrative offense (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).

The range of violations of labor legislation for which the Code of Administrative Offenses of the Russian Federation provides penalties is quite wide (in the table we present violations under Article 5.27 of the Code of Administrative Offenses of the Russian Federation and the penalties for them).

Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for violation of labor protection requirements in an organization. The fines here are more serious - up to 200,000 rubles. For example, an employer’s violation of the established procedure for conducting a special assessment of working conditions at workplaces or failure to conduct one can cost the organization a fine of 60,000 to 80,000 rubles. And allowing an employee to perform job duties without undergoing training and testing knowledge of labor protection requirements, as well as without mandatory medical examinations, is subject to a fine of up to 130,000 rubles.

Of course, these are not all violations, but they are the most common. There is also liability for violating the rules and regulations:

1. Conducting collective negotiations on the conclusion of a collective agreement and failure to fulfill obligations under them (Articles 5.28 – 5.31, 5.33 of the Code of Administrative Offenses of the Russian Federation).

2. Settlement of collective labor disputes (Articles 5.32, 5.34 of the Code of Administrative Offenses of the Russian Federation).

3. In the field of employment of disabled people (Article 5.42 of the Code of Administrative Offenses of the Russian Federation).

4. On the involvement of a foreign citizen or stateless person in labor activities in Russia (Articles 18.9, 18.15 – 18.17, 18.19 of the Code of Administrative Offenses of the Russian Federation).

5. On the involvement of a state or municipal employee or a former state or municipal employee in labor activity or in the performance of work or provision of services (Article 19.29 of the Code of Administrative Offenses of the Russian Federation).

Administrative offenses in the field of hiring foreigners will cost employers the most - fines for them reach 1,000,000 rubles.

Let us note that, in general, violations of labor legislation are detected by state labor inspectors or other state and municipal control bodies. They carry out control and supervisory activities in accordance with the annual inspection plan or based on employee complaints. But regulatory authorities do not always immediately impose a fine: they can issue a mandatory order to eliminate violations identified during the inspection. But if the employer does not comply with such an order, then it is already possible to apply administrative measures under Part.

1, 23 art. 19.5 Code of Administrative Offenses of the Russian Federation.

Criminal liability.

Unfortunately, there are employers who maliciously violate the requirements of labor legislation. Neither regulations of regulatory authorities nor administrative fines apply to them - they continue to ignore the Labor Code of the Russian Federation. These employers are subject to criminal liability.

The principles of criminal liability and the procedure for applying appropriate measures are determined by the Criminal Code of the Russian Federation.

Criminal liability arises only for crimes - a guilty socially dangerous act prohibited by the Criminal Code of the Russian Federation under threat of punishment (Article 14 of the Criminal Code of the Russian Federation).

This type of liability has one feature - it can only be applied to an individual (Article 19 of the Criminal Code of the Russian Federation). This means that the head of the organization or other official who committed the crime, but not the organization, will have to answer according to the law.

Let us note that with regards to labor relations in the Criminal Code of the Russian Federation there are not so many norms - only four:

1. Article 136. We know that Art. 3 of the Labor Code of the Russian Federation prohibits discrimination in the sphere of labor - no one can be limited in labor rights and freedoms or receive any advantages depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence, as well as other circumstances not related to the employee’s business qualities. If it is established that an official of the employing organization nevertheless violated this prohibition, criminal penalties may be applied to him:

• fine from 100,000 to 300,000 rubles. or in the amount of wages or other income of the convicted person for a period of one to two years;
• deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years;
• compulsory labor (up to 480 hours) or correctional labor (up to 2 years), or forced labor (up to 5 years);
• imprisonment for up to 5 years.

2. Article 143 – violation of labor protection requirements. It is the employer who is entrusted with the responsibility to ensure safe conditions and labor protection (Article 212 of the Labor Code of the Russian Federation). Criminal liability for violation of labor protection requirements depends on the consequences they entailed.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 1 of April 23, 1991 “On judicial practice in cases of violations of labor protection and safety rules during mining, construction or other work” drew attention to the fact that liability under Art. 143 of the Criminal Code of the Russian Federation may be borne by persons who, by virtue of their official position or by special order, are directly charged with the obligation to ensure compliance with the rules and regulations of labor protection in a certain area of ​​work, as well as heads of enterprises and organizations, their deputies, chief engineers, chief specialists of enterprises, if they did not take measures to eliminate violations of labor safety rules known to them, or gave instructions that contradict these rules, or, having taken on direct management of certain types of work, did not ensure compliance with the same rules.

3. Article 145 - unreasonable refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age on the grounds of pregnancy or the presence of children is punishable less severely - a fine of up to 200,000 rubles. or compulsory work for up to 360 hours.

4. Article 145.1 – non-payment of wages, pensions, scholarships, benefits and other payments. Here, the penalties depend on what part of the amounts due was unpaid and what consequences such non-payment entailed for the employee.

The most severe punishment is provided for the heads of an organization or branch, representative office or other separate structural unit in case of complete non-payment of wages for more than two months out of selfish or other personal interest. For this you can receive a fine of up to 500,000 rubles. or even end up in prison for up to three years.

Responsibility of the employer for violation of the labor rights of the employee to the state

In addition to the workers themselves and trade union bodies, supervisory authorities also monitor compliance with labor laws and workers’ rights. In this regard, employers sometimes have to answer not only to employees, but also to the state for offenses committed.

It’s good if you can get away with just one administrative punishment, for example, a fine. But there are cases when the employer’s violations are so great that the guilty person may even be brought to criminal liability.

Responsibilities

The main responsibilities of the employer are enshrined in Art.
22 of the Labor Code of the Russian Federation, although their decoding is usually presented in other legislative acts (for example, in the Tax Code, in laws on special assessment of working conditions, on military duty, on social insurance, on trade unions, etc.). Like rights, they can be divided into 3 groups - in relation to a specific employee, a team and the state. If we talk about the responsibilities of the employer towards the employee, then these include:

• provision of work stipulated by the contract;
• ensuring workplace safety;
• provision of equipment, tools, documentation, and other means to perform duties;
• ensuring equal pay for work of equal value;
• payment in full of the due salary within the terms established by the Labor Code of the Russian Federation, collective agreement, labor agreement, labor contracts;
• familiarization with signature with accepted personal identification documents that are directly related to work activity;
• providing for household needs related to the performance of work duties;
• implementation of compulsory social insurance;
• compensation for harm caused and compensation for moral damage in the manner and under the conditions described in federal legislation.

What are the responsibilities of an employer towards the state?

1. Compliance with labor legislation and legal acts containing labor law standards: implementation of agreements specified in industry agreements approved at the federal or regional level.
2. The employer’s responsibility is to timely comply with the instructions of regulatory authorities in the event of violations.
3. Payment of imposed fines.

What are the main labor responsibilities of the employer in relation to the team? Here we are talking about actions related to collective agreements and interaction with trade unions. In particular, officials are obliged to:

• provide correct information for concluding a collective agreement and monitoring its implementation;
• conduct collective negotiations and conclude a collective agreement;
• make decisions taking into account the opinion of the trade union in cases provided for by the Labor Code of the Russian Federation;
• consider submissions from trade unions or representatives elected by employees about identified violations, and then take measures to eliminate them and inform about the work done;
• in cases provided for by the Labor Code of the Russian Federation, allow employee representatives to participate in the management of the organization.

Administrative responsibility of the employer

Administrative liability of employers is established by the Code of the Russian Federation on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). A mandatory element for the emergence of such liability is the presence of guilt.

Article 2.2 of the Code of Administrative Offenses of the Russian Federation distinguishes two forms of guilt:

• Intention - an administrative offense is recognized as committed intentionally if the person who committed it was aware of the illegal nature of his action (inaction), foresaw its harmful consequences and desired the occurrence of such consequences or consciously allowed them or was indifferent to them;
• Negligence - an administrative offense is recognized as committed through negligence if the person who committed it foresaw the possibility of harmful consequences of his action (inaction), but without sufficient grounds, he arrogantly counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.

You can read more about the main violations of employers in the field of administrative law, as well as the sanctions provided for such offenses in the article “Administrative and criminal liability of the employer.”

Criminal liability of the employer

Criminal liability of the employer may arise in case of violation of the constitutional rights of citizens prescribed in Art. 37 of the Constitution of the Russian Federation: “Labor is free. … Forced labor is prohibited. ...Everyone has the right to work in conditions that meet safety and hygiene requirements, to remuneration for work without any discrimination...Everyone has the right to rest. A person working under an employment contract is guaranteed the working hours established by federal law, weekends and holidays, and paid annual leave...”

It should be remembered that the basis for criminal liability is the commission of an act containing all the elements of a crime provided for by the Criminal Code:

• the object is a social relationship that is protected by the Criminal Code;
• the objective side is a set of signs characterizing the external manifestation of a crime (in particular, action/inaction, cause-and-effect relationship; time, place, situation and other detailed data);
• subject - an individual committing a crime (medical worker);
• the subjective side is the mental attitude of a person to the socially dangerous act he commits (guilt, motive and purpose). A person’s guilt can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

Unlike administrative offenses, types of violations under criminal liability are more socially dangerous in nature, therefore, under criminal liability, sanctions against the employer are more stringent.

You can find a visual table showing the employer’s offenses and the articles of the Criminal Code of the Russian Federation, according to which criminal liability is provided for such violations, in the article “Administrative and criminal liability of the employer.”

In order to understand in more detail the issue of the employer’s responsibility to the employee, we recommend that you read other articles in this section:

• “Material and civil liability of the employer to the employee”
• “Responsibility of the employer for improper payment of wages and other amounts due to the employee”
• “The employer’s obligation to compensate the employee for harm in case of loss of ability to work”

Another comment on Article 1068 of the Civil Code of the Russian Federation

1. Subjects of tort liability can be not only citizens, but also legal entities. Tort, i.e. the ability to be held accountable for harm caused is an integral element of the legal capacity of legal entities, regardless of whether the latter is of a general or special nature. However, in order to impose an obligation to compensate for harm on a legal entity, it is necessary that the harm was caused by its employee in the performance of labor (official, official) duties (paragraph 1, clause 1, article 1068).

When applying this provision, it is important to take into account that in this case a legal entity is responsible not for the actions of other persons, but for its own behavior, which can only be expressed in the actions of its employees. Therefore, the legal entity itself is responsible to the victims, and not the specific individuals who actually caused the harm. The latter, if the necessary conditions are met, may be liable to the legal entity itself by way of recourse.

2. When imposing on a legal entity the obligation to compensate for non-contractual damage, the concepts of “employee” and “fulfillment of labor duties”, which are most fully disclosed in labor law, acquire key importance. In the comments. Art. An attempt has been made to define them in relation to tortious obligations. At the same time, the concept of “employee” is given a fairly broad meaning, since it recognizes not only the person with whom the employment agreement (contract) is concluded, but also the person performing work under a civil contract. True, in the latter case it is necessary that the employee acted or should have acted on the instructions of the relevant legal entity and under its control over the safe conduct of work. If the counterparty under a civil contract acts independently of the customer, he does not fall under the concept of an employee and, in the event of harm, is responsible to the victims independently.

3. The concept of “fulfillment of labor duties” is also interpreted in the broadest sense. It covers any actions of employees that express the material functions of the relevant legal entity, i.e. actions of a production, technical, transport and other nature. As a rule, actions in the performance of job duties are performed by employees during working hours and at the place of work, however, exceptions are also possible. Failure to fulfill labor duties, when employees were supposed to act, but illegally failed to act, also serves as the basis for the liability of a legal entity for the resulting harm to victims. Thus, it is only important that the behavior of employees is in one way or another connected with their labor functions and expresses the activities of the legal entity itself.

4. Provisions fixed by comment. Art., also apply to citizens acting as employers or customers under a civil contract, which involves the customer’s control over the safe conduct of work. In addition, according to paragraph 2 of Art. 1068 they apply to business partnerships and production cooperatives if damage is caused by their participants (members) when they carry out entrepreneurial, production or other activities of the partnership or cooperative. The separation of these two types of legal entities in the law is due to the fact that, in accordance with the law, participants in business partnerships and members of production cooperatives must take personal labor participation in their activities.