Everyone chooses a job to their liking or according to their requirements, based on their own desires. For some, work is primarily a way to earn money, but there are also people who sincerely love what they do. However, love for work alone will not satisfy you. Quite often, people encounter problems in the workplace, and among them one of the most unpleasant is non-payment of wages.
And it’s not clear what to do, because many people still continue to work, even though they turn to managers. Those, in turn, just shrug their shoulders or feed them with promises. But if it is obvious to everyone that non-payment of wages is a gross violation, then not everyone knows about criminal liability. In this article we will tell you not only about it, but also about when wages should be paid and what to do if you are not paid.
Labor legislation
All working citizens have the right to monetary remuneration for their work without discrimination and not lower than the approved minimum wage (Article 37 of the Constitution, Article 21 of the Labor Code of the Russian Federation).
The employer is obliged to pay earned money to employees within the terms established by the internal acts of the organization: labor and collective agreements, labor regulations (Article 22 of the Labor Code of the Russian Federation).
Each employee has the right to receive a salary on time, in full and in an amount not lower than the minimum established by the state. According to Art. 142 of the Labor Code of the Russian Federation, it must be paid twice a month .
From 09/03/16, monthly wages must be paid by the 15th day of the month following the month worked (Law No. 272-FZ of 07/03/16).
Failure to pay wages on time is a crime against working citizens . The severity of this official arbitrariness lies in the fact that it infringes on the interests of the worker: it undermines their social stability, and violates the constitutional right to remuneration for work.
Responsibility for the employer begins from the first day of delay, and from the 16th - employees have the right to stop performing their work duties. They must communicate their intention to the employer in writing. At the same time, they are still entitled to a salary: at least 2/3 of the average.
Persons guilty of non-payment of wages to employees are subject to material, administrative and criminal liability.
When should it be paid?
It is not for nothing that the Labor Code of the Russian Federation is highly recommended for reading, because it contains answers to many questions. In particular, he does not ignore the payment of wages. According to Art. 136 of the Labor Code of the Russian Federation, the employer is not only obliged to notify the employee in writing using a pay slip , but he is also obliged to pay it at least every half month.
Of course, the specific payment day must be specified in the employment contract. Or in the collective agreement, if you signed it. However, in any case, wages must be paid no later than the fifteenth day from the end of the period that has already been paid . For vacation pay, a deadline is also specified, namely: they must be paid no later than three days before the start of the vacation itself.
If they try to mislead you regarding holidays, then the same art. 136 of the Labor Code of the Russian Federation clearly speaks about holidays and weekends. By law, wages are required to be calculated in advance or the day before if the payment date falls on a weekend or holiday. Keep in mind that we are talking specifically about those holidays that are recognized as public holidays.
In order to hold the employer liable, one day of late payment is enough. If wages are delayed for more than 16 days, you can suspend your activities at the workplace. Even if you do not perform your duties from this date, you are still entitled to payment for this time.
Criminal penalties for non-payment of wages
Criminal liability for non-payment of wages to employees applies to the head of an enterprise (branch, representative office, other separate division) or to an individual entrepreneur.
Art. 145.1 of the Criminal Code of the Russian Federation protects the right of people to remuneration for their work. Its clauses provide for various penalties for non-payment of earnings.
Partial non-payment
A partial payment means a payment of less than half of the amount due to the employee.
The employer's criminal liability for non-payment of wages in this case occurs if:
- wages have not been paid in full for more than three months;
- the above employers have selfish goals or personal interests.
For partial non-payment of earnings, one of the following criminal penalties :
- fine of up to 120,000 rubles. or in the amount of earnings (other income) of the convicted person for a period of up to a year;
- prohibition from holding certain positions or conducting certain activities for up to a year;
- forced labor for up to 2 years;
- imprisonment for up to a year.
Complete non-payment
Complete non-payment means a situation where:
- wages are not paid for 2 months;
- payment of earnings for the same period is below the minimum established by the legislation of the Russian Federation.
If the employer's malice is proven, he is subject to more severe penalties than in the case of partial non-payment.
One of the following criminal penalties is applied:
- fine 100,000-500,000 rub. or in the amount of earnings (other income) of the convicted person for a three-year period;
- forced labor for up to 3 years with or without a ban on holding certain positions or engaging in certain activities for up to 3 years;
- imprisonment for up to 3 years with or without restriction in carrying out certain activities or holding certain positions for up to 3 years.
When determining the interval for which employees were not partially or fully paid , all months with violations must be taken into account. Their order does not matter.
What should an employee do in accordance with the Labor Code?
For an employer to be held liable for unpaid wages in 2021, the employee must not be inactive. The right to receive remuneration for work is provided for by the Constitution. It is necessary to defend it. To do this, you can perform a whole list of different actions.
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Suspension of work duties
If the company does not provide wages within 15 days, starting from the 16th, the employee has the right to stop working.
However, this fact must be reported to the employer in writing. In this case, the right to subsequent receipt of funds will remain. The organization will be obliged to pay money for the period during which work duties were not performed.
If activities are suspended due to non-payment of wages, the need for mandatory presence at the workplace does not arise. However, if the company sends a letter stating that it is ready to provide funds at the time of going to work, the person must be at his workplace on the next shift. The above rules do not always apply.
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A citizen does not have the right to refuse to perform labor activities if wages are delayed in the following cases:
- he is part of the organization’s employees who ensure the livelihoods of the population;
- a state of emergency or martial law has been declared;
- maintenance of particularly dangerous production or equipment is carried out;
- The work of military or paramilitary organizations or companies engaged in ensuring national security or defense is performed.
Submitting a complaint to the Labor Inspectorate
The organization monitors compliance with the norms of the Labor Code of the Russian Federation. The objectives of the institution are reflected in Article 355 of the above-mentioned legal act. The employee’s actions in the event of non-payment of wages must include filing a complaint with the Labor Inspectorate. Having received the application, representatives of the organization initiate an inspection. If the employee’s words are confirmed, the employer is obliged to eliminate the violations. In other situations, you will have to contact other regulatory authorities.
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Visit to the prosecutor's office
The functioning of the institution is subject to the Russian legislative system. An appeal can be made if there is a violation of the Labor Code, wages are not paid on time.
An appeal to the prosecutor's office is made in the form of a complaint. The rules for its preparation are not regulated by current legislation. Therefore, you can write an application arbitrarily. You will need to prepare an application in 2 copies. The one that remains with the employee must be marked with acceptance.
After considering a labor complaint against an employer, representatives of the prosecutor's office are obliged to provide a reasoned response. It is issued in writing. If the decision of the government agency is not satisfactory, you can appeal it to a higher authority or court. If the employer's guilt is proven, the organization will be held accountable. It can be administrative or criminal. The prosecutor's office acts strictly in accordance with the procedure established by law.
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Trial
If the employer refuses to fulfill the employment contract and pay wages, it is necessary to go to court. This allows you to collect not only the debt, but also the penalty. Additionally, claims for compensation for moral damage can be made.
It is possible to initiate legal proceedings using a statement of claim. It must be supplemented with labor documentation confirming the fact of work in the organization. It is necessary to reflect on the paper the amount of the salary and the terms of payment. The amount of debt incurred is calculated separately.
If a corresponding court decision has been received, you must contact the bailiffs to collect the debt. A writ of execution will be required. It is provided after a labor trial if the citizen’s demands are satisfied. Bailiffs will help to collect wages forcibly.
Severe consequences
If partial or complete non-payment of wages to an employee has led to serious consequences , an even more stringent measure of liability is applied to the employer.
Serious consequences mean , for example, the death of an employee or the deterioration of the condition of a sick family member. A cause-and-effect relationship must be established: evidence that, for example, the wife did not receive an expensive medicine due to unpaid wages to her husband.
Clause 3 of Article 145.1 provides for one of the following penalties:
- fine from 200,000 to 500,000 rubles. or in the amount of earnings (other income) for a period of 1 to 3 years;
- imprisonment for 2-5 years and a ban on holding leadership positions or conducting certain activities for up to 5 years or without it.
Compensation and compensation for moral damage to workers
No employee payments should be withheld. Violation of these norms not only entails administrative liability, but also leads to additional costs.
First - interest
If you miss the deadline for settlements with an employee, then you will have to pay the employees not only the amount of delayed funds, but also interest at the rate of not less than one hundred and fiftieth of the current Central Bank refinancing rate for each day of delay. The calculation must be made from the next day after the due date for payment until the day of actual payment, inclusive.
If you pay wages on time, but not in full, interest must be calculated on the amount of money actually not paid. Follow Article 236 of the Labor Code of the Russian Federation as amended by Federal Law No. 272-FZ of July 3, 2021, effective from October 3, 2021.
Second - harm
According to Article 22 of the Labor Code, an employer who delays the payment of wages is obliged to compensate for the harm that he caused to employees by failing to fulfill his obligations and compensate for moral damage. The amount at which the company and the employee will assess moral damage can be agreed voluntarily in an agreement between the parties. And if the parties do not reach mutual understanding, the amount of moral damage will be determined by the court.
What about personal income tax?
Compensation payments due to delayed wages are not subject to personal income tax in accordance with paragraph 3 of Article 217 of the Tax Code of the Russian Federation.
The period during which an employee can file a complaint about arrears of wages is one year. This period is calculated from the day when the employee should have received wages or other payment for work.
Current account status
Whether a manager will be held criminally liable for failure to pay wages sometimes depends on the state of the organization's account at the time of the delay or after the debt is repaid.
There is not enough money in the account
In this situation, the reasons why there are no funds left in the account are important. These may include the following:
- Money was paid to the manager (a significant increase in earnings, an impressive bonus, etc.). These actions are criminally punishable.
- Unreasonable financial investments (purchase of shares, real estate, etc.). The corpus delicti is obvious.
- Intentional withdrawal of money from an account (with the exception of its theft).
When qualifying management actions under Art. 145.1 of the Criminal Code of the Russian Federation, in case of non-payment of wages due to insufficient money, one should be guided by the law: the order of debiting funds from the account if there is a shortage (Article 855 of the Civil Code of the Russian Federation).
Payment of wages belongs to the third stage . If the manager paid taxes or, for example, rent, then his actions fall under Art. 145.1 of the Criminal Code of the Russian Federation: filing an application with the Arbitration Court for bankruptcy (Law No. 127-FZ of October 26, 2002).
Managers of an enterprise in a crisis situation often try to solve the problem on their own, ignoring the obligation to file an application to court.
Instead, the manager uses the available money to purchase raw materials or goods, and uses the profits to pay off salary debt and develop further activities.
The following situations are possible:
- Delay in payment of wages is less than 3 months, there are no serious consequences . This act is assessed under Art. 14 of the Criminal Code of the Russian Federation and is not considered a crime.
- The delay slightly exceeded the 3-month period . This act can be regarded under Art. 39 of the Criminal Code of the Russian Federation. Exceeding the time limit is assessed based on the circumstances of the case. For example, the savings of employees allowed them to live for more than 3 months without any special difficulties.
The intention of the manager was aimed at restoring the solvency of the organization. In these situations, the opinion of the workforce is taken into account.
For example, an employee did not receive a salary for 3 months, but retained a valuable job, and his debt was paid in full and an additional bonus was paid.
There is money in the account
If the boss does not pay wages when there are funds in the account , what matters is whether he can manage them: send them to the cash desk or transfer them to the personal accounts of employees.
If, for example, the account is under arrest, then there is no corpus delicti of the manager, since there is no intention not to pay wages.
Material liability
If there is a delay in payment for labor, additional interest is charged. This is compensation for an employee who is forced to wait.
The size of the payment depends on the key rate of the Central Bank of the Russian Federation. The employee is charged at least 1/150 of the above figure for each day of delay.
If only part of the salary was paid, compensation is still collected. However, for its calculation, the actual amount not received will be taken into account. If other figures are specified in the collective or employment contract, the amount of compensation may be increased. The employer will be required to pay it regardless of whether he is to blame for the delay or not.
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Special Moments
If an employee worked not under an employment contract, but under a civil contract , criminal liability does not apply to the manager.
Criminal penalties for late payment also apply to heads of universities and other government agencies.
Defendants in such criminal cases cannot have the assistance of a lawyer .
If a manager is subject to administrative penalties for non-payment of wages, he may also face criminal charges at the same time.
Not only the manager can be subject to criminal punishment . An accomplice may be the financial director or chief accountant, who carries out fraud to withdraw money intended to pay salaries.
What the law says
The interaction between the employer and employees is regulated by the Labor Code of the Russian Federation. It states that the organization is obliged to provide salaries at least 2 times a month. In this case, the parties to the contract have the right to choose their own number. They are fixed in the agreement. Even if the delay is only one day, the law allows the employer to be held accountable. First of all, it will be material. The rule is enshrined in Article 236 of the Labor Code of the Russian Federation. Additionally, the company may be subject to criminal and administrative liability. If an employer refuses to pay wages or does not provide them on time, he must be prepared for this.
Sign of a manager's guilt
Criminal liability for delayed wages can only follow if the boss is proven guilty (Article 2.1 of the Code of Administrative Offenses and Article 14 of the Criminal Code of the Russian Federation) .
The crime will be confirmed if two conditions are met:
- Salaries were not paid when there was a real possibility of paying them.
- The manager had a motive for non-payment.
Once the employer’s self-interest or personal interest in non-payment of wages is proven, the court will decide on the degree of punishment for the defendant.
Selfish intent presupposes the deliberate retention of available funds, the desire of the manager to obtain material benefit for himself.
For example, putting unpaid money into your account to accrue interest, purchasing property, solving personal financial problems, etc.
Personal interest is expressed in the desire to get rid of unwanted employees for the purpose of career growth or other malicious intent.
During the audit, the manager can present evidence of the absence of his guilt. For example, lack of financial income from a higher organization.
In this case, the supervisory authority notifies the superior about the results of the inspection and the adoption of measures to repay the salary debt.
"Levers of influence" of personnel
If the payment of monetary remuneration is delayed for a period exceeding 15 calendar days, the injured employee has the right to suspend work until the final settlement of the wage fund by notifying management in writing (Article 142 of the Labor Code of the Russian Federation), with the exception of:
- the time of introduction of special measures in accordance with legislative acts on emergency and martial law;
- bodies ensuring defense capability and security at the state level;
- rescue, fire and law enforcement services;
- institutions engaged in servicing production facilities classified by certified commissions as hazardous;
- civil servants;
- utility specialists;
- emergency medical teams.
Employees have the right not to be present at the place of performance of official duties while maintaining the average salary for the full period of suspension of work. Hired personnel are required to return to work the next day after the employer notifies them of their readiness to settle unpaid wages.
Where to contact
If wages are not paid, a peaceful settlement of the issue is initially possible .
The reasons for the delay should be clarified. Perhaps the difficulties are temporary. They will soon be resolved and the conflict will be settled.
The solution may be partial repayment of the debt according to the drawn up schedule and other options for resolving the issue.
If there were gray wages at the enterprise, it is almost impossible to collect the debt on them and filing complaints on this issue will not yield results.
If the problem is not resolved peacefully , employees can turn to certain authorities to protect their rights.
Investigation Department
Violations reflected in Art. 145.1 is being considered by the Investigative Committee (IC) . An application should be submitted to his territorial unit if the manager delays wages.
Labour Inspectorate
The competence of this body is to protect the rights of workers from the arbitrariness of employers. An application must be submitted to the inspectorate describing the nature of the problem.
Its employees will conduct an inspection of the offending organization. They will independently send their conclusion based on its results to the Investigative Committee or the prosecutor’s office.
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You can contact the police. The employees will accept the application and also forward it to the Investigative Committee.
Internet portal
The website “Onlineinspection.rf” will help you file a complaint against your employer for late payment of wages, get answers to your questions, get acquainted with similar situations of other citizens, and get prompt assistance in solving the problem .
Prosecutor's office
This supervisory body considers complaints about non-payment of wages as a matter of priority , especially in cases involving young people (under 18 years of age) and people with disabilities, i.e. vulnerable segments of the population.
The prosecutor will analyze the facts stated in the workers' statement.
In relation to the management of the organization, a representative of the prosecutor's office issues a resolution to urgently cease all offenses against employees.
Court
The employer may be subject to legal proceedings. Collection of wage arrears through the court is an effective measure.
The statement of claim must be drawn up correctly. It must contain factual evidence of management’s guilt and specific demands of the injured workers.
After considering the application, the court makes a decision. Compulsory measures are applied to the employer to satisfy the interests of the victims.
So, late payment of wages to employees is illegal , which can have serious consequences for the management of the organization. Criminal liability is a last resort. It is applied only when the guilt and selfish goals of the leader are proven.
Salaries are not paid - what to do?
In this case, you first need to try to negotiate with the administration.
Find out the reasons. Demand payment. If an agreement cannot be reached, then warn the employer that the performance of duties will be terminated until payments are resumed (in writing). Then contact the labor dispute commission (the application must be in writing). Such commissions are created in any organization with more than 15 people. Its solution is binding on both disputing parties.
If the enterprise cannot resolve the issue, then an appeal should be made to the State Labor Inspectorate or the prosecutor's office . Read more about what to do in case of non-payment of wages here.
What to choose: tariff or non-tariff wage system? The choice largely depends on what your company does. Under certain conditions, civil servants have the right to retire after length of service. Whenever possible, read here.
You receive a “gray salary”. Then it won’t hurt you to know that not only the employer, but also the employee can now be punished for such activities. Details here.
