Employers who delay payment of wages to employees and other violations of wages are liable: administrative, material, criminal and disciplinary (in relation to the employer's officials).
Currently, control over incoming requests from citizens regarding non-payment (late payment) of wages has been strengthened. Tax officers are recommended to immediately redirect them to the State Tax Inspectorate upon receipt of citizens’ requests (Letter of the Federal Tax Service of the Russian Federation dated March 24, 2020 No. SD-4-2/ [email protected] ).
“They once said that cobblestone is a tool of the proletariat. Today it’s not like that, today it’s the head, the main thing is the brains. Because all participants in the process must understand the underlying processes in the economy and in the social sphere, they must understand the responsibility for what you do in a crisis,” the President of the Russian Federation once said at a meeting with trade unions. These words spoken by Putin V.V. in 2009, are still relevant today.
What liability do employers face for non-payment of wages?
Most labor disputes concern non-payment of wages (both in full and in part) or individual components of wages (for example, bonuses), compensation for moral damages for delayed payment of wages.
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. If peaceful negotiations with the employer on the payment of wage debts have no effect, the employee can contact the labor inspectorate, file a complaint with the prosecutor’s office, or go to court.
Most often, negligent employers will face punishment under Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation (a fine for officials in the amount of 10 thousand to 20 thousand rubles).
We present the most common judicial practice in labor disputes.
Regulatory acts
Legal acts of the Russian Federation establish that the work of any person is appreciated.
The rules establishing the sequence of remuneration, liability for its delay or incomplete payment are established through separate articles:
- In the Constitution of the Russian Federation.
- In the norms of the Labor Code of the Russian Federation (LC RF).
- In the provisions of the Criminal Code of the Russian Federation (CC RF).
- In the articles of the Code of Administrative Offenses (CAO).
They are able to protect the citizen’s right to earn money.
The Basic Law of the country discloses the concept of remuneration for labor, specified in Art. 37. The right to receive it is inalienable for a working person. In addition, benefits and compensation are provided in cases established by law, the delay of which is also unacceptable.
Labor Code of the Russian Federation in Art. 236 stipulates the protection of a citizen from the inaction of the employer, expressed in delaying payment or making it in parts. It guarantees full receipt of amounts and compensation as a percentage for each day of delay. The Code provides for financial liability of the employer for such delays. The timing of payments is fixed in Article 136, which states that the 16th day elapsed from the day specified for payment of wages is considered the first day of delay.
Administrative measures of influence against the employer or other guilty employee are applied according to the norms of the Code of Administrative Offenses, Art. 5.27. It is accompanied by a fine, which increases in case of repeated violation of the laws. The amount also depends on the category of the culprit: manager, entrepreneur, official.
Criminal liability for delay or partial payment of wages (scholarships, pensions) is established in Art. 145.1 of the Criminal Code of the Russian Federation. An important factor will be the employer’s proven personal motives for violating civil rights in the form of refusal to pay wages based on selfish motives. An important circumstance for the criminal process will be proof of the fact that the employer has funds. Their delay must be associated with his personal interest, expression of will, and intentional actions. The preliminary investigation is under the jurisdiction of the Investigative Committee according to the norms of the Code of Criminal Procedure.
The article is structured in three parts and a note. For each there is a separate corpus delicti and a measure of punishment for its commission. According to the Criminal Code of the Russian Federation, it involves not only a fine, but also a ban on holding a position and imprisonment. It is for criminal punishment that the most severe methods of influence are reserved, as the most dangerous.
Delay of wages from the legal point of view
The procedure and timing of settlements with employees are regulated by Art.
136 Labor Code of the Russian Federation. According to parts 5 and 6, the salary must be issued directly to the employee at the location of the enterprise or transferred to a bank account. The frequency of payments is at least once every 15 days. Accordingly, the employee must receive two or more payments each month. The norms of the Labor Code of the Russian Federation do not determine the percentage of payments. Therefore, one of them may be larger in size than the other. For example, the system for paying employees may be as follows: the first payment includes only the salary at the tariff rate, and the second, in addition to the salary, includes bonuses and other additional payments.
Specific dates for payment of wages, in accordance with Part 4 of Art. 136 of the Labor Code of the Russian Federation, are determined in the collective labor agreement for all employees equally or are stipulated directly in the contract with each employee. Moreover, if the payment date falls on a weekend or holiday, then the calculation is made the day before.
For individual payments, special deadlines may be established within which the administration of the organization must make them. So, for example, vacation pay, according to Part 9 of Art. 136 of the Labor Code of the Russian Federation, are transferred to the employee no later than three days before the start of the vacation.
Accordingly, if an enterprise does not comply with these requirements and pays the employee at the wrong time or does not pay the due money at all, then we are talking about delayed wages.
Responsibility for delayed wages lies in the application of financial and other sanctions to the administration of the enterprise in accordance with the norms of the Labor Code, Code of Administrative Offenses and the Criminal Code of the Russian Federation - depending on the timing and amount of accumulated debt.
If necessary, you can go to court to collect wages.
Where to go?
Legal collection of arrears of wages is one of the last methods that people resort to to protect their rights to remuneration.
Additionally provided:
- Application to the labor dispute commission, if there is one at the enterprise.
- Complaint to the labor inspectorate.
- Appeal to the Prosecutor's Office.
- Reporting a violation to the Investigative Committee.
- Use of Internet resources.
Each department has a roughly similar plan for processing applications; the differences lie in the powers. It is important to study them to choose where to go.
The labor dispute commission created at large enterprises is not always able to resolve the issue. If the employer does not make contact, does not take steps to peacefully and quickly resolve the conflict, it is worth contacting more serious authorities.
Labor inspectors have the authority to inspect the company and draw a conclusion already on the first day of delay about a violation of the constitutional right to remuneration for work. If the employer is at fault, all reviewed materials and conclusions are transferred to the police, prosecutor's office or investigative committee, and a statement of claim may be filed in court.
At the Prosecutor's Office, employees will classify the case as important and consider it quickly. The issued Resolution addressed to the violator contains demands to stop the violation of the law and may oblige the return of unpaid funds. In more serious cases, where guilt and criminal actions of the company’s management are perceived, the case is sent to court.
The Investigative Committee will accept a statement containing signs of a criminal offense. You can compose it correctly using Internet resources. Be sure to include statements from your personal account about income, an employment contract indicating the periods of salary payment.
The most effective means of debt collection is considered to be consideration of the case in court. The statement of claim must meaningfully describe the violations committed by the employer. The evidence base will consist of documents, witness statements, photo documents reflecting an objective picture of late payment of funds, responses from other supervisory departments, if appeals were sent in this regard, and inspections of the employer were carried out.
The amount of the salary has not been proven - interest for its delay is calculated from the minimum amount
If the employer violates the established deadline for paying wages, vacation pay, dismissal payments and (or) other payments, the employer is obliged to pay them with interest (monetary compensation). Such interest is calculated in an amount not lower than 1/150 of the key rate of the Central Bank of the Russian Federation in effect at that time on the amounts not paid on time for each day of delay. If the employee fails to prove the real amount of salary, the amount of compensation is calculated based on the regional minimum.
In relation to previous labor disputes, the amount of compensation was 9,457 rubles 77 kopecks, based on the salary - 17,561 rubles (Appeal ruling of the Moscow City Court dated 06.06.2019 No. 33-17011/2019 and dated 12.03.2019 No. 33- 6941/2019).
Partial non-payment
Partial payment of wages and being punished for it under the Criminal Code means:
- do this for three months in a row;
- to do for personal or selfish reasons;
- The manager himself must be responsible for the fact of incomplete delivery and make decisions.
If the action was committed by an employee without the knowledge of the manager, under Part 1 of Art. 145.1 of the Criminal Code of the Russian Federation there is no liability.
As a measure of liability, a fine is applied (up to 120 thousand or one year’s earnings), deprivation of the right to occupy certain positions, 2 years of forced labor or a year of imprisonment.
Complete non-payment
More severe is the liability for complete non-payment of earnings.
Its distinctive features are:
- 2 month debt period.
- Responsibility is provided both for money not fully paid and for payments made in an amount less than the established minimum wage.
- The obligatory motive is personal or selfish interest.
- Only the manager commits a crime under this article.
The difference from the first point is that payment is not made at all, or its size does not allow the person to meet the minimum needs, and amounts to an amount less than the salary.
The Criminal Code of the Russian Federation regards non-payment of wages for more than 2 months as a crime, which is characterized by punishment in the form of a fine (from 100 to 500 thousand or income for three years), forced labor with a simultaneous ban on engaging in certain types of activities, or imprisonment for up to 3 years, also accompanied by deprivation of the right to work in certain industries or in specific positions.
The actions had serious consequences
Debts to employees can lead to a deterioration in a person’s life and well-being, negatively affecting his life.
Severe consequences arising from the lack of funds may include:
- deterioration in the health of an employee or a dependent person due to the inability to buy medicines, devices to ensure the functioning of the body, or pay for a rehabilitation course;
- death of a citizen, which could not have occurred if funds were available (suicide);
- violations of public order, expressed in strikes, termination of work duties, which led to negative consequences for other persons;
- deterioration of the employee’s property status, resulting in the impossibility of repaying accounts payable, which resulted in the collection of penalties.
In the legal process, an important role should be given to the process of proving that the consequences are directly related to the delay in wages.
Crimes under Part 3 of Art. 145.1 are medium in severity. The penalty is provided in the form of a fine (200-500 thousand or earnings for 3 years), imprisonment from 2 to 5 years, in some cases accompanied by a ban on engaging in certain types of activities for up to 5 years.
If it is not officially registered and the employer does not pay wages
When an employee comes to get settled
to work, the employer is obliged to provide
an order
or
instruction
, which is drawn up in accordance with the employment contract, after which, within three days from the actual start of work, the employee is obliged to sign it.
Article 68 of the Labor Code of the Russian Federation
:
Recruitment
formalized by an order (instruction) of the employer issued on the basis of a concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
Order
The employer's (order) of hiring is announced to the employee against signature within three days from the date of actual start of work.
At the request of the employee, the employer is obliged to provide him with a duly certified copy
of the specified order (instruction).
( as amended by Federal Law No. 90-FZ of June 30, 2006
)When hiring (before signing an employment contract), the employer is obliged to familiarize the employee with the internal labor
, other local regulations directly related to the employee’s work activity, and a collective agreement.
( Part three as amended by Federal Law No. 90-FZ of June 30, 2006
)
But recently, cases have increasingly begun to appear when an employee is hired for an unofficial position and receives a gray salary. In this case, there is no talk of concluding an agreement.
This situation has both its disadvantages and advantages.
So, the negative consequences of informal employment:
- There are no maternity benefits, sick leave is not paid, in addition, you remain without bonuses, allowances and additional payments;
- Processing is not paid for; payment may be delayed or not paid at all;
- Salary and length of service are not taken into account when calculating pensions;
- You will not be compensated for your injuries in any way.
Now let's look at the positive aspects:
- Saving on taxes.
- There are no deductions for alimony from your salary;
- No legal responsibility for your actions;
- Salary may be higher than with official employment.
After looking at these lists, you must weigh everything yourself and decide whether you need it or not. It is worth remembering that in cases of informal employment, cases of non-payment of wages
, which consequently leads to the same question - what to do if you worked unofficially and the employer does not pay your salary?
First, it’s worth deciding what punishment the boss faces for failing to draw up an agreement.
officially
hire
you This situation is fully regulated by Article 5.27 of the Code of Administrative Offenses of the Russian Federation
.
Article 5.27 of the Code of Administrative Offenses of the Russian Federation
:
- Violation
of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by
parts 2 and 3
of this article and
Article 5.27.1 of this Code
, entails a warning or the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles ; for persons carrying out entrepreneurial activities without forming a legal entity - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.- Actual admission to work by a person not authorized
to do so by the employer, in the event that the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer as labor relations (does not conclude with the person actually admitted to work for work, employment contract), entails the imposition of an administrative fine on citizens in the amount of three thousand to five thousand rubles; for officials - from ten thousand to twenty thousand rubles.- Evasion from registration or improper execution
of an employment contract or the conclusion of a civil contract that actually regulates labor relations between an employee and an employer shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from five thousand to ten thousand rubles; for legal entities - from fifty thousand to one hundred thousand rubles.- The commission of an administrative offense provided for in Part 1
of this article by a person who has previously been subjected to administrative punishment for a similar
administrative offense
shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles or disqualification for a period of one to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to twenty thousand rubles; for legal entities - from fifty thousand to seventy thousand rubles.- The commission of administrative offenses provided for in parts 2 or 3
of this article by a person who has previously been subjected to administrative punishment for a similar administrative offense entails the imposition of an administrative fine on citizens in the amount of five thousand rubles; for officials - disqualification for a period of one to three years; for persons carrying out entrepreneurial activities without forming a legal entity - from thirty thousand to forty thousand rubles; for legal entities - from one hundred thousand to two hundred thousand rubles.
In addition, if you work unofficially, then your boss is not a tax agent for you, therefore, for this, in particular, he also faces punishment, but only criminally.
Article 199.1 of the Criminal Code of the Russian Federation
:
- Failure to fulfill,
in personal interests,
the duties
of a tax agent to calculate, withhold or transfer taxes and (or) fees subject to calculation, withholding from the taxpayer and transfer to the appropriate budget (extra-budgetary fund) in accordance with the legislation of the Russian Federation on taxes and fees, committed on a large scale shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to two years, or by forced labor for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term up to three years or without it, or by arrest for a term of up to six months, or by imprisonment for a term of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
( as amended by Federal Laws dated 03/07/2011 N 26-FZ, dated 12/07/2011 N 420-FZ
)- The same act, committed on an especially large scale
, is punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of two to five years, or by forced labor for a term of up to five years with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to six years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
( as amended by Federal Law dated December 7, 2011 N 420-FZ
)
Now let's move directly to the question - where can you turn if an employer does not pay wages to an unofficially employed person? According to paragraph 2 of Article 67 of the Labor Code of the Russian Federation
, an employment contract is concluded if the employee began to perform his duties with the knowledge or on behalf of the employer.
Paragraph 2 of Article 67 of the Labor Code of the Russian Federation
:
Undocumented employment contract
in writing, is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative.
an employment contract
with him in writing no later than three working days from the date of the employee’s actual admission to work, and if relations related to the use of personal labor arose on the basis of a civil law contract, but were subsequently recognized as labor relations - no later than three working days from the date of recognition of these relations as labor relations, unless otherwise established by the court.
( as amended by Federal Laws dated June 30, 2006 N 90-FZ, dated December 28, 2013 N 421-FZ
)
Therefore, you can protect your rights by contacting the labor inspectorate
or
the prosecutor's office
. But in order to defend your side, you need to prove the fact that you really worked in this organization.
To do this, you must provide testimony
employees or clients who saw you at work.
copies of documents
on which your signature will be affixed (invoices, acts of acceptance and transfer of goods, contracts) will play a big role in this matter
Having provided all the necessary evidence base
, upon your application, an inspection will be carried out, as a result of which the employer will be held accountable.
Arbitrage practice
An interesting established practice of considering cases in courts. It varies for cases, depending on the incriminated part of the article.
In case of partial and complete non-payment of funds under Article 145.1 of the Criminal Code of the Russian Federation with competent commentary and explanation from lawyers, for example, D. A. Lebedev, and the practice reflected in the Plenums of the Supreme Court, we can conclude that predominantly one type of possible punishment is not used . Cases often end in connection with the application of the parties; a fine is imposed without deprivation of liberty or its restriction, even in the absence of an admission of guilt by the employer.
When studying law enforcement practice under the third part of the article, it should be borne in mind that in fact there are few such cases. It is difficult to prove the connection between the consequences that occurred and the fact of untimely payment of wages, putting together an overall picture of cause-and-effect relationships, the location of each event. In addition, you can hold the employer accountable and get money earlier by trying all measures of influence, appealing to various authorities, including the court.
So, according to the verdict of the Ishimbay City Court of the Republic of Bashkortostan dated September 22, 2011, gr. N. did not pay part of the earnings to an employee with whom an employment contract was concluded for more than two months. He admitted his guilt, repented, and pledged to return the money in full. The court sentenced him to a fine.
Is it possible to bring other types of criminal liability?
In Art. 4 of the Labor Code of the Russian Federation establishes a direct ban on the use of forced labor. Moreover, in accordance with Part 4 of this article, forced work includes the performance of labor duties with partial or complete non-payment of wages.
In this regard, it is theoretically possible to apply on this basis, in addition to the above-mentioned punishment specified in Art. 127.2 of the Criminal Code of the Russian Federation for the use of slave labor, providing for correctional labor or imprisonment for up to 5 years. However, in practice there have been no precedents for the implementation of this norm. However, non-payment of wages from a legal point of view can be considered in this context.
Typical qualification mistakes
Consideration of the case in court may reveal mistakes made by the investigative authorities in the process of conducting the case. For this reason, the severity of the offense is incorrectly determined.
These include:
- distortion of the period for calculating the delay, which are regulated by the internal act of the organization, which indicates specific days for the transfer of funds;
- incorrect definition of the subject and object of the crime;
- indication of the motives for committing actions. Different from the actual ones, or their interpretation from the wrong perspective;
- erroneous calculation of the amount of debt incurred.
The consequence of the mistakes made will be an incorrect classification of the crime and a punishment disproportionate to the guilt. Incorrect interpretation of the start period of the delay leads to a distortion of the understanding of the limitation period in the case.
Current account status
The company's current account reflects the state of its financial activities. The funds stored on it are used for timely payment of wages, settlements with suppliers, and the purchase of materials (depending on the type of activity). For the court, the circumstances of the lack of money or their availability at the enterprise will become important. Having identified a lack of funds, it is important to analyze the reason.
Facts indicating the guilty actions of the manager will be:
- Spending money on buying unnecessary things, equipment, investments.
- Cashing out an account.
- Withdrawal of the masses through bonuses or increased pay for the manager.
However, if the delay occurred due to the costs of purchasing materials, thanks to which the organization continued its activities, made a profit and fully paid off its debts, in the absence of claims from employees, criminal liability does not arise.
The presence of money in the account indicates intentional non-payment of wages and failure to fulfill obligations to issue them. The only argument considered by the court in favor of the employer is the seizure of the account. Provisions of Art. 145.1 of the Criminal Code of the Russian Federation with all the comments allow us to conclude that it is the manager who is necessarily to blame for actions to withhold wages.
Can an employer avoid criminal liability?
From January 8, 2019, organizations and other employers who violated the provisions on timely payment of wages have the opportunity to avoid criminal punishment (see Federal Law No. 533-FZ of December 27, 2018). To do this they must:
- Commit an offense for the first time;
- Pay off the entire debt no later than 2 months after the date of initiation of the criminal case;
- Pay the due penalty for the delay;
- There should be no signs of another crime in their actions.
As a result, the state gave the opportunity to come to their senses and rehabilitate the company managers who committed such an offense for the first time.
Suspension of work due to non-payment of wages
Most citizens of the Russian Federation, in the event of a delay in wages, can suspend work after 15 days. Before doing so, be sure to notify the employer in writing of the reasons for absence from work. A sample form for filling out an application can be downloaded online or obtained from the legal system Consultant or guarantor. It is compiled in two copies. One, with a mark of delivery, is kept.
The law provides that some employees are deprived of the right to suspension of work for this reason:
- Civil servants.
- Citizens working in hazardous industries.
- Citizens working during emergencies or natural disasters.
All others are empowered to protect the right to work and receive remuneration for it.
The Supreme Court, in one of its decisions, ruled that refusal to work due to non-payment of remuneration is forced on the part of the employee. This right given to the employee is aimed at eliminating the violation of rights by the employer and prompt settlement.
Employee rights when wages are delayed
Norms Art. 142 of the Labor Code of the Russian Federation gives the employee the right to independently seek payment of the due salary by suspending work. However, this right can only be used if the salary delay is more than 15 days.
Important! To legally begin the suspension of work, the employee must notify the employer about this in writing (Part 2 of Article 142 of the Labor Code of the Russian Federation). The corresponding application (notification) can be submitted to a representative of the administration either in person against a signature or sent by mail, with a list of the contents and a receipt.
If the employee complies with the stipulated requirement of written notification to the enterprise, then disciplinary sanctions cannot be applied to him (for example, dismissal for absenteeism). In addition, the employee retains his average salary for the entire period of suspension of activities. This obligation of the enterprise is another measure of the employer’s liability for non-payment of wages.
At the time of suspension of work, the employee is not required to be present at the workplace (Part 3 of Article 142 of the Labor Code of the Russian Federation). However, he is obliged to go to work the next day after receiving written notification from the enterprise of his readiness to repay the debt on the day he goes to work.
According to Art. 142 of the Labor Code of the Russian Federation, not all employees have the right to suspend work. Thus, if an employee is employed in the sphere of life support for the population (ambulance, heating, water and gas supply enterprises, etc.), he does not have the right to suspend work due to the specifics of his professional activity.
