Article 236 of the Labor Code of the Russian Federation. Financial liability of the employer for delay in payment of wages and other payments due to the employee (current version)

Art. 136 of the Labor Code of the Russian Federation obliges the employer to pay wages to its employees at least once every half month. In this case, the day of payment of monetary allowance is determined by the internal regulations of the organization: a collective or labor agreement.

Not all managers respect, much less abide by, the letter of the law—almost every second of them delays salary payments. Are there any levers of influence on an unscrupulous employer and how to use them correctly - two questions that primarily concern those who fail to receive their honestly earned money on time.

What does the labor code say?

The Labor Code of the Russian Federation states that if an employer allows itself to delay the payment of wages, then employees have the right to report such an offense to supervisory and regulatory authorities.

When a complaint is received from employees, the supervisory authority must conduct an inspection. 30 days are allotted for studying the appeal itself. During this period, a decision must be made to conduct an inspection of the employer. When conducting an inspection, inspectors are obliged to check all the facts described in the complaint, and also request documents from the employer regarding the payment of wages. If violations are discovered, an order will be issued, which will indicate all detected violations, as well as the deadline for correcting them.

After this period, inspectors will visit the employer again and conduct a re-inspection. If the violations are not eliminated, the employer will already be held accountable. The powers of inspectors from the labor inspectorate include issuing decisions to bring the employer himself, as well as officials through whose fault the delay occurred, to administrative liability.

Article 142 of the Labor Code of the Russian Federation

Everything related to such a topic as delayed salaries is described in it. According to the Labor Code, the following is stated: “If an employer or someone who is his authorized representative has committed untimely payment of legal remuneration to an employee, then he is obliged to bear responsibility in accordance with federal laws and the Labor Code of the Russian Federation.”

This chapter gives some rights to employees of the organization. Here's what the Labor Code says: a delay in wages that lasts more than 15 days is a legal basis for the state to suspend its activities. But before stopping going to work, each employee is required to draw up a written notice and submit it to his superiors.

What to do if there is a delay

The date of payment of wages must be specified in the wage regulations. The employee must be familiar with it when applying for a job. As a rule, an advance is given at the end of the month, and the rest of the salary is given at the beginning of the next month. The exact dates when payments will be made are specified in local regulations. If the date is written so that in the current month it falls on a weekend or non-working holiday, then the salary must be paid the day before, on the last working day.

For example, the regulations on wages stipulate that the employer must pay its employees on the 8th of each month. In March it is a non-working holiday. Therefore, salaries for February must be paid on March 7. If payments are not made on the established day, this is already a violation of the rights of workers.

When do you need to pay wages?

Organizations must pay employees twice a month.
The first time - an advance and the second time - the so-called “pay”. Payroll for the past month must be paid no later than the 15th day of the next month (Article 136 of the Labor Code of the Russian Federation). Earlier it is possible, but later it is impossible. Therefore, the exact day of salary payment must be fixed in employee employment contracts and the company’s internal regulations. A delay in wages of at least one day, regardless of its reason, is regarded as a violation of labor legislation (Articles 236, 237 of the Labor Code of the Russian Federation).

Actions of an employee in case of delay in payment of wages

An employee who does not wait for the payment of wages within the period established by the collective or labor agreement has every right to begin defending his interests the very next day.

1. Contacting the labor inspectorate at the location of the enterprise. This is the first step that must be taken in order to stop the employer’s illegal actions and speed up the payment of wages. The application to the inspectorate is drawn up in free form, but it must indicate specific violations of the employee’s rights. In this case, this is the fact of delay in payment of the allowance, the number of days of delay and the amount due.
2. If the situation does not change within 15 days after the salary was due to be paid, the employee has the right to suspend his work until the violation of his rights is eliminated, that is, until he actually receives his salary. It is important not to forget to warn the manager about this in writing, referring to the provisions of Art. 142 Labor Code of the Russian Federation. If the employer begins making payments, it must also give proper written notice to employees. That is, the employer must ensure that the employee receives the notice in person and signs for its receipt. This can be done as follows:
   personally visit the employee and give him a notice. You need to prepare 2 identical copies. One is given to the employee, the second remains with the employer, and the employee puts his signature on it;
3. sent via Russian Post. The notification must be sent by registered mail with notification and an inventory of the contents. Once the postal notice is returned to the employer, he will know on what date the employee received the notice. As soon as the employee receives notice that payments will begin, he must return to work. If he does not do this, this action will be regarded as absenteeism and may become grounds for dismissal.

In accordance with document No. 14-2-337 of the Russian Ministry of Labor dated December 25, 2013, each day of suspended work must be paid by the employer, based on the average earnings of a particular employee. An essential point: the right to suspend work does not exist for civil servants, as well as for workers servicing hazardous types of equipment or production, or those whose work activities are directly related to ensuring people’s livelihoods: employees of ambulance stations, power plants, water supply enterprises, and so on. Another important point! Actions in the form of suspension of work are legal only in cases where the employee is not paid wages. If there is a delay in payment of compensation for vacation, then such actions may be regarded as absenteeism.

4. Simultaneously with the suspension of work, it is worth filing a claim in court to recover from the employer not only the amount of arrears of wages, but also compensation for the delay in payment. Before filing a claim, you should find out whether the salary has been accrued, since if there is no dispute about the existence of a debt, as well as about the amount to be paid, there is no need for court hearings - a writ of execution can be issued almost immediately after the application.
5. For those who have not been able to receive their salary within three months, it makes sense to contact the prosecutor’s office or the police - in this case, the employer’s actions fall under Article 145.1 of the Criminal Code or, what is less serious, but also unpleasant, Article 5.27 of the Administrative Code.

How can you receive a salary?

There are the following ways to receive a salary:

1. Cash at the cash desk of the enterprise.

The law determines that the main method of salary payment is the employee receiving cash at the place of work.

2. Non-cash transfer to the employee’s bank card.

Nowadays, most employers enter into agreements with banks to issue and service salary cards for their employees. This, of course, is very convenient and allows the company to transfer the entire salary amount to the bank in one payment with a register attached, which indicates the amounts to be credited to the specific account of each employee. For many workers, this form of receiving a salary is also convenient.

It should be remembered that when transferring salary to a bank card, the employer is obliged to notify his employee in writing by issuing salary slips in the established form:

• about the components of the salary; • on the amounts of other accrued amounts (compensation, allowances); • about the amounts and grounds for deductions made; • about the total amount to be paid.

In case of failure to issue such a notification about the salary and its components, the employer may be held administratively liable.

The employer has the right to transfer salary to the employee’s card only with his written consent.

An employer cannot “bind” employees to a specific bank. The employee has the right to change the bank at any time, and also has the right to simply refuse to receive salary by non-cash method. To do this, the employee must submit an application to the employer no later than 5 working days before the date of salary payment (Article 136 of the Labor Code of the Russian Federation).

3. Receiving salary in non-monetary form.

The Labor Code of the Russian Federation does not prohibit receiving salary in non-monetary form - for example, in the form of finished products. However, this form of payment is possible only with the written consent of the employee and cannot exceed 20% of the employee’s earnings. Agreements on payment of wages in non-monetary form of more than 20% are void and have no legal force.

It should be remembered that if a promissory note is issued instead of a salary, this will not be considered the issuance of a salary; this is prohibited by law.

Employer's liability

The Labor Code of the Russian Federation states that the employer must be held accountable for delays in wages. The right to work and its payment is guaranteed not only by labor legislation, but also by the Constitution of the Russian Federation. For violation of these rights, the employer can be held liable for the following types of liability:

1. Disciplinary punishment. In Art. 192 of the Labor Code of the Russian Federation states that the boss himself and the officials who caused delays and non-payment of wages can be held accountable. The highest form of such punishment is dismissal.
2. Material liability. In Art. 234 – 236 of the Labor Code of the Russian Federation states that from the first day of delay in payments, the employer is obliged to pay compensation to its employees in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation on the day the debt arose.
3. Administrative responsibility. If the guilt of the employer or its officials is fully proven, then inspectors have the right to bring them to administrative responsibility. Punishment is applied in accordance with Art. 5. 27 Code of Administrative Offenses of the Russian Federation. If the violation occurred for the first time, then inspectors can only issue a warning or issue a ruling to pay a minimum fine:
   officials - from 1,000 to 5,000 rubles;
4. Individual entrepreneur – from 1,000 to 5,000 rubles;
5. legal entities – from 30,000 to 50,000 rubles.

If the violation is repeated, the amount of the fine increases significantly:

• for officials – from 10,000 to 20,000 rubles;
• entrepreneurs – from 10,000 to 20,000 rubles;
• legal entities – from 50,000 to 70,000 rubles.

Criminal liability. They are called to it in cases where it is proven that the manager did not pay wages for selfish reasons. Punishment – ​​up to two years in prison.

In accordance with Art. 145.1 of the Criminal Code of the Russian Federation, the employer is held criminally liable in the following cases:

• wage arrears were repaid in the amount of less than half of the debt;
• the period of delay is more than 3 months;
• it was proven that the non-payment was due to the employer’s selfish motives and interests;
• the subject is the director of a legal entity, branch or other separate division of a legal entity.

The following penalties can be applied to the employer:

• a fine of up to 500,000 rubles;
• a fine commensurate with salary or other sources of profit for the last 3 years;
• prohibition on holding a certain position for no more than 5 years;
• forced labor for up to 3 years;
• arrest for no more than 3 years.

The penalty will be chosen in accordance with the severity of the offense. It is important to distinguish between partial non-payment and complete non-payment.

Partial nonpayment is nonpayment of wages in the amount of less than half of the total debt. A complete non-payment is a non-payment of the entire amount earned by each employee in the last 2 months. The severity of the consequences is determined by the court through careful consideration of the specific case. The duration of the crime, the amount of wage arrears, the number of victims, etc. are taken into account.

Procedure for collecting compensation

Punishment for the employer for the lack of settlement payments is good, however, what can the employee himself count on, who, due to the fault of his boss, was left without money? The law provides for a penalty for an employee, which the owner of the enterprise must pay.

There are several ways to request compensation for unpaid wages :

1. File a claim directly with the employer and demand payment of wages and penalties for the delay.
2. Write a letter to the labor inspectorate about the current situation or file a statement with law enforcement agencies.
3. Draw up a statement of claim in court and demand from the manager payment of debt on wages, compensation and expenses.

You may find the following information interesting: an application to the labor inspectorate for non-payment of wages.

Remember that filing a claim for delayed wages under the Labor Code of the Russian Federation is possible only within one year from the date of the last payment. It is advisable not to delay this action. After an unsuccessful attempt to peacefully resolve a dispute with the employer, the employee needs to move on.

Going to court is the most effective method of collecting a settlement debt. Along with the claim, you must submit documents confirming the fact of employment and wage payments.

According to Article 236 of the Labor Code of the Russian Federation, the employee is entitled to compensation for delays in payment of earnings. Its size is determined by the following formula: 1/150 of the Central Bank of the Russian Federation rate multiplied by the amount of debt and the number of days of delay.

Consequences of a delay of 1 day

According to the provisions of the Labor Code of the Russian Federation, a delay in wages even by 1 day can lead to unpleasant consequences for the employer in the form of compensation payments. Compensation is accrued from the 1st day of delay in the amount of 1/150 of the key rate of the Central Bank of the Russian Federation, which is set on the day the debt arose. To receive compensation, the employee does not need to fill out any paperwork or write additional statements. All calculations and payments are made by the employer independently. They must be carried out together with the payment of delayed wages.

If the delay is 1 or several days, you can write a claim addressed to the employer demanding to pay not only wages, but also compensation for each day of delay. If the letter is ignored, you can complain to higher authorities.

However, the claim must be submitted in writing and must be properly recorded as an incoming document. The employer will then have to provide a formal written response.

How to do the calculation yourself

Calculating compensation yourself is quite simple - you need to know your salary and the exact number of days of delay. The last indicator must be correctly calculated from the day specified in local documents.

To calculate, you must use the following formula:

KV = ZrP * Class.St. / 150 * KDP, where

KV - compensation payment that the employer must make in favor of his employee;

Salary - the amount of wages that must be paid to a specific employee on a strictly established day;

Class.St. – this is the key rate (in percentage) of the Central Bank of the Russian Federation on the day the delay occurred. In the period from March 26, 2021 to September 16, 2021, the key rate is 7.25%;

KDP – number of days of delay.

Calculation example: At an enterprise, wages for the second half of the month are paid on the 6th of each month. For July, payment was made only on August 14. P.’s salary is 52,500 rubles. What amount should he receive on August 14? No additional payments were provided for July.

Calculation: CV = (52,500 * 7.5% 150) * 8 = 52,710 rubles, of which 210 rubles are interest for a delay of 8 days.

Further actions

Usually, after an employee has stopped his work, management takes all possible measures to provide him with legal remuneration. However, a person should not be particularly concerned about this. Since even while he is not fulfilling his duties, he retains his salary.

But he must return to his work place the next day after he receives a notification from his boss that he is ready to accrue the delayed remuneration (necessarily in writing). The amount is transferred to the card on the day the person returns to work.

Payments upon dismissal

They are also worth noting. Dismissal is a legal procedure that involves settlement of the employee leaving the company and the return of his work book. Payments are usually made on the last day of work. Or the one that followed the day in which the person turned to management with a demand for payment. This is stated in Article 140 of the Labor Code of the Russian Federation.

And even in such cases of dismissal, there is a delay in wages. According to the Labor Code, upon dismissal, a person is obliged to come for payment himself. If the manager hesitates, then his departing employee has the right to make a claim. He can even contact the relevant judicial authority, which is the Labor Inspectorate. The complaint is considered within a calendar month. Then there are proceedings and trial. Everything takes a certain time, takes away nerves and strength, therefore it is in the interests of the employer to pay the person without directly involving the law.