Employers are held liable by law. More about collective monetary obligations

Unfortunately, in our time, disputes between employees and employers arise quite often, and one has only to “ask” google to return results for the query “employers mayhem” and the search engine will offer several hundred thousand results. This suggests that the topic of employer's responsibility is quite relevant and many people daily ask themselves questions about whether the employer acted lawfully in relation to them in this or that situation and how they can protect their rights. Naturally, this leads to the fact that the issue of responsibility is also acute among employers, whose rights are sometimes infringed no less.

Understanding this topic can be quite difficult and to protect your rights it is better to contact qualified lawyers. However, in general, it is necessary for everyone to navigate this issue, and in order to help both sides understand it, the Faculty Medical Law prepared a series of articles "Employer's Responsibility".

In this article, we will look at general provisions regarding the liability of the employer to the employee. The rest of the articles can be found at the links below:

Article 419 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) contains an indication of bringing persons guilty of violating labor legislation to five types of liability. Among them, applicable to the employer, four can be distinguished (with the exception of the disciplinary one):

material
civil law
administrative
criminal

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

Disciplinary responsibility can only come from the employee, therefore, there is no place for it in the article.

General provisions on liability employer are contained in section XI of the Labor Code of the Russian Federation. The essence of liability is obligations of a party to an employment contract(in our case, the employer), causing damage to the other party(in our case, an employee), repair this damage.

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

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

Chapter 38 Labor Code four grounds for the occurrence of the liability of the employer are considered:

unlawful deprivation of an employee of the opportunity to work,
damage to his property,
delayed salary and other payments,
causing moral harm to an employee.

Read more about the obligations and consequences for the employer caused by such circumstances in the articles "", "".

Another form of legal liability aimed at restoring the violated rights of an employee is civil liability. This type of employer's responsibility to the employee takes place in cases where he is responsible for the specified violation according to the norms of not labor, but civil legislation.

AT this case mechanisms for protecting the rights of an 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 consists in the following rules:

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

As we can see, the civil liability of the employer, as well as material, 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, material liability is, in fact, civil law (S.S. Alekseev, S.N. Bratus, R.O. Khalfina, etc.).

More details about distinctive features material and civil liability of the employer to the employee you can read in.

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In addition to the workers themselves and trade union bodies, the observance of labor legislation and the rights of workers is also monitored by supervisory authorities. In this regard, employers sometimes have to answer for the committed offenses not only to employees, but also to the state.

Well, if you manage to get off with only one administrative punishment, for example, a fine. But there are cases when the violations of the employer are so great that the guilty person can even be held criminally liable.

The administrative responsibility of employers is established by the Code Russian Federation on administrative offenses (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation). An obligatory element of the occurrence 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 unlawful nature of his action (inaction), foresaw its harmful consequences and desired the onset of such consequences or knowingly allowed them or treated them indifferently;
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, presumptuously counted on preventing such consequences or did not foresee the possibility of such consequences, although he should have could have foreseen them.

More about the main violations of employers in the field administrative law, as well as the sanctions provided for such offenses, you can read in the article "".

Criminal liability of the employer may occur 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 the requirements of safety and hygiene, to remuneration for work without any discrimination ... Everyone has the right to rest. A person working under an employment contract is guaranteed the duration of working hours established by federal law, holidays and holidays paid annual leave...

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

the object is a public relation that is protected by the Criminal Code;
the objective side is a set of signs that characterize the external manifestation of a crime (in particular, action / inaction, causation; time, place, situation and other detailed data);
subject - individual who commits a crime (medical worker);
the subjective side is the mental attitude of a person to the socially dangerous act committed by him (guilt, motive and purpose). The guilt of a person can be in the form of intent (direct or indirect) or negligence (criminal frivolity or criminal negligence).

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

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

In order to understand in more detail the issue of the responsibility of the employer to the employee, we recommend that you familiarize yourself with other articles of this section.

It is defined as the obligation of a party to an employment contract to compensate for the damage caused by it to the other party to this contract, in accordance with the Labor Code of the Russian Federation and others. federal laws.

The liability of the employee and the employer is one of the types of legal liability. Like any type of legal liability, it occurs in the presence of mandatory legal obligations. general requirements which are necessary for its application.

Most representatives of the general theory of law and branch legal sciences, in particular labor law, distinguish three general terms of liability:

1) unlawfulness of the action (inaction) that caused damage;

2) a causal relationship between the unlawful act and material damage;

3) guilt in committing an unlawful act.

In list mandatory conditions liability, along with general conditions the presence of property damage is also indicated. There are other points of view about the conditions for liability. So, some scientists specializing in the field of labor law, the conditions necessary to bring an employee to liability, rank only wrongfulness, causation and guilt of the employee, and the damage is called the basis of this liability.

It is difficult to agree with this statement. Lexical meaning the word "foundation" means an essential part, relations or conditions that give rise to some phenomenon. The mere existence of damage cannot give rise to legal liability; as indicated in the theory of law, an offense has such a property. This is the difference between legal liability and other types of liability, i.e. legal liability applies only to those who committed the offense, i.e. violated the rule of law, the law. Such an understanding corresponds to the constitutional principle: no one can be held responsible for an act that at the time of its commission was not recognized as an offense (part 2 of article 54 of the Constitution of the Russian Federation). Consequently, factual basis liability of the parties employment relationship as a type of legal liability is only an offense. Considering the sectoral affiliation of material liability, it can be argued that the basis for its onset (offense) is a disciplinary offense, which consists in failure to perform or improper performance of duties that make up the content of labor discipline. The damage caused is only one of the elements of this offense and characterizes its objective side.

The current labor legislation does not use the term "offence" to indicate the basis of liability, but identifies four conditions necessary for its occurrence. In accordance with Art. 233 of the Labor Code of the Russian Federation, the material liability of a party to an employment contract occurs for damage caused by it to the other party to this contract as a result of its guilty unlawful behavior (action or inaction), unless otherwise provided by this Code or other federal laws.

There is no general definition of damage in the Labor Code of the Russian Federation, therefore, for its interpretation, civil law is used, which defines losses, including in the event of damage. In accordance with Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit).

The Labor Code of the Russian Federation, unlike the Civil Code of the Russian Federation, does not use the term "losses", it refers to compensation for damages both for the employer and for the employee. However, the content of the concept of "damage" for the parties to the employment contract is not equivalent. Thus, the rules on the liability of the employer oblige him to compensate the employee not only for real damage, but also for lost profits. Consequently, the concept of damage to the employer under the Labor Code of the Russian Federation is wider than the concept of damage provided for in civil law.

Illegal action or inaction is the behavior of a party to an employment contract that does not comply with the requirements of laws, other regulatory legal acts or the terms of the employment contract. Illegal behavior may be expressed in non-performance or improper performance of duties by the employee (employer).

A necessary condition for bringing to liability is the existence of a causal relationship between the committed act and the damage caused. The causal relationship is that the damage is a direct result of the unlawful behavior of the party to the employment contract. It is determined on a case-by-case basis. The absence of a causal relationship relieves the parties from liability for illegal actions or inaction.

The concept of guilt is formulated with the help of objective and subjective criteria. Guilt is a mental attitude to the committed illegal behavior and its result, as well as the goals and motives of the illegal behavior, which constitute the content of the subjective side of the offense. Guilt can be in the form of intent or in the form of negligence. Guilt in the form of intent takes place if a person is aware of the nature of his behavior, the target orientation of the will to commit unlawful acts, understands the possibility of specific harmful consequences of behavior or, although not completely, foresees the consequences, but consciously allows any of the possible.

A careless form of guilt implies a state of consciousness and will of a person at the moment of action (inaction), in which he does not realize the wrongfulness of the act, does not foresee its harmful consequences, although with a certain degree of prudence and care he could and should have foreseen them, or foresees the possibility of harmful consequences, but frivolously hopes to prevent their onset.

Labor legislation establishes the mutual liability of the parties to the employment contract. As provided for in Part 1 of Art. 232 of the Labor Code of the Russian Federation, the party to the employment contract that caused damage to the other party compensates for this damage in accordance with this Code and other federal laws. Liability in labor law arises due to the existence of an employment relationship. However, in accordance with Art. 232 of the Labor Code of the Russian Federation, the termination of an employment relationship due to the termination of an employment contract after causing damage does not entail the release of the party to this contract from liability.

Each of the parties is obliged to prove the amount of damage caused to it. The parties may specify material liability in the employment contract or in additional agreements. Voluntary compensation is possible.

The Labor Code of the Russian Federation does not define what should be understood as concretization, therefore, in practice, certain difficulties may arise related to the concretization of liability. Thus, some researchers interpret concretization as a process of filling in intentional incompleteness. legal regulations, others consider this concept as one of the ways of knowing, revealing the content of the law (a higher form of concretization is the creation of legal provisions detailing the law within the framework of the law), others identify concretization with the concept of "interpretation", for the fourth concretization is the rule-making development of the law.

In our opinion, concretization allows you to detail the legal norms in their application, which gives rise to new provisions that should not contradict the current legislation. In particular, art. 232 of the Labor Code of the Russian Federation allows you to specify liability employment contract or additional agreements, however, indicates that the contractual liability of the employer to the employee cannot be lower, and the employee to the employer - higher than provided for by this Code or other federal laws. That is, the employee and the employer can, in the employment contract or in additional agreements, specify the amount of their liability, for example, indicate that the head of the organization bears limited liability for direct actual damage caused to the organization (although in accordance with Article 277 of the Labor Code of the Russian Federation, full material liability). Such a specification of material liability is permissible, since it does not violate the rule prohibiting an increase in the amount of material liability of an employee, and improves his position.

It should be noted that, based on the inequality of the employer and employee in labor relations, primarily economic, the legislator establishes some differences in legal regulation material liability of the employee and the employer.

Differences are manifested in the nature of the legal norms governing the liability of the employer and employee; in the content of the conditions necessary for the onset of liability; in determining the amount of damages to be compensated, the procedure and limits of its compensation, etc. Let us consider these differences in more detail.

The differences in the nature of the legal norms governing a particular type of liability lie in the fact that these norms have certain restrictions established by the legislator, and if they guarantee an increased legal protection, in particular, preventing an increase in his responsibility, then in relation to the employer they prevent the reduction of his responsibility.

The basis for bringing the employee to liability is only the infliction of direct actual damage as a result of non-performance or improper performance by him of his job duties. The liability of the employer comes not only for direct damage caused to the property of the employee, but also for lost profits.

Direct actual damage caused by an employee is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

The damage caused by the employee to third parties should be understood as all amounts paid by the employer to third parties in compensation for damage. At the same time, it must be borne in mind that the employee can only be liable within the limits of these amounts. An exception is established regarding the content of the damage caused by the employee - the head of the organization. It is entrusted with full liability for direct actual damage caused to the organization. In cases provided for by separate federal laws, the head of the organization compensates for the losses caused by his guilty actions in accordance with the norms of civil law (Article 277 of the Labor Code of the Russian Federation).

According to the Labor Code of the Russian Federation, the employer is liable for the following offenses: unlawful deprivation of the employee of the opportunity to work (Article 234); damage caused to the property of an employee (Article 235); payment delay wages and other payments due to the employee (Article 236).

In addition, in ch. 38 "Material liability of the employer to the employee" of the Labor Code of the Russian Federation provides for the possibility of compensation for moral damage caused to the employee by illegal actions or inaction of the employer (Article 237). Only the employee has the right to compensation for non-pecuniary damage.

In the legal literature, an opinion has been expressed about the violation of the principle of mutual liability by granting this right to only one party to the employment contract. The refusal of the legislator to protect the non-property rights of the employer is called into question if the employee disseminates information discrediting his business reputation, if the employee disseminates false information about the low-quality nature of the products, services provided, etc.

This point of view is not indisputable. In the Labor Code of the Russian Federation there is no definition of the concept of moral harm. Its content is disclosed in the Decree of the Plenum of the Supreme Court of the Russian Federation of December 20, 1994 N 10 "Some questions of the application of legislation on compensation for moral damage." Moral harm is understood as moral or physical suffering caused by actions (inaction) that encroach on intangible benefits belonging to a citizen from birth or by virtue of the law (life, health, dignity, business reputation, immunity privacy, personal and family secrets, etc.), or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with laws on the protection of rights to the results of intellectual activity), or violating the property rights of a citizen. It follows from the definition that compensation for non-pecuniary damage is possible only in relation to citizens. Many well-known civilists, such as V.M. Zhuikov, Yu.K. Tolstoy, N.S. Malein, V.T. Smirnov et al. support this point of view and point out that entity cannot endure physical and moral suffering. Some authors made a proposal to supplement the Labor Code of the Russian Federation with a norm providing for the obligation of employees to compensate moral damage to employers - individuals.

We believe that, in principle, it is impossible to allow the possibility of compensation for non-pecuniary damage by an employee to an employer, given that wages for an employee are, as a rule, the main source of income. It should be noted that international acts (in particular, the Convention international organization Labor of July 1, 1949 N 95 regarding the protection of wages) speak of the need to protect wages "to the extent that it is considered necessary for the maintenance of the worker and his family." Therefore, the cost of compensation for non-pecuniary damage, coupled with the need to compensate material damage become an additional economic burden for the employee, which will affect his family budget. At the same time, it should be taken into account that the employee, compared with the employer, is economically more weak side labor relationship.

A significant difference is contained in the scope and types of material liability of the parties to the employment contract. If the employer always compensates the employee for damage in full, then the employee is liable for the damage caused, as a rule, only within the limits of his average monthly earnings. And only in cases specified by the Labor Code of the Russian Federation and other federal laws, the employee must compensate the direct actual damage in full (full liability).

Significant differences exist between the concept of damage caused by an employee and the definition of damage caused by an employer. As already noted, the employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

The employer, in turn, compensates the employee not only for direct actual damage, but also for a kind of lost profit. Although the text of the Labor Code of the Russian Federation does not directly mention lost profits, in fact, it is referred to when it says that the employer is obliged to compensate for damages for delayed wages, as well as for the time when the employee did not actually work: when illegal dismissal employee, refusal or untimely execution of the decision to reinstate the employee in his previous job; if the employer delays issuing a work book to an employee, entering into it an incorrect or inconsistent wording of the reason for dismissal of the employee. In other words, in specified cases the employee receives payment even when he either does not actually perform labor duties, or performs them in another way. labor function or when changing other essential conditions employment contract that affected the amount of earnings, i.e. under these circumstances, earnings are less than what the employee would have received if his right had not been violated.

The amount of damage caused by the parties to the employment contract to property is also determined differently. In case of damage to the property of the employee, the amount of damage is calculated according to market prices in force in the locality on the date of compensation for damage. In case of loss or damage to the property of the employer by the employee, the amount of damage is determined by the actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting taking into account the degree of depreciation of this property (part 1 of article 246 of the Labor Code of the Russian Federation). Although, according to part 2 of this article, in certain cases(causing damage by theft, deliberate damage, shortage or loss of certain types property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount) it is allowed that a federal law may establish a special procedure for determining the amount of damage subject to compensation.

In addition, as the Plenum of the Supreme Court of the Russian Federation explained in paragraph 13 of Resolution No. 52 of November 16, 2006 "On the application by the courts of legislation governing the material liability of employees for damage caused to the employer", in cases where it is impossible to establish the date of damage, the employer has the right to calculate the amount of damage on the day of its discovery. And if, during the consideration of the case in court, the amount of damage caused to the employer by the loss or damage to property changes due to an increase or decrease in market prices, the court is not entitled to satisfy the employer’s claim for compensation by the employee for damage in a larger amount than it was determined on the day it was caused (detection), since the Labor Code of the Russian Federation does not provide for such a possibility.

The legislator defines a different procedure for recovering damage caused to the property of an employee and an employer.

The employer, having received the employee's application for compensation for damage, considers it and, within ten days from the date of receipt of the application, makes an appropriate decision. If the employee disagrees with the decision of the employer or does not receive a response within the prescribed period, the employee has the right to apply to the court.

As for the procedure for compensation for damage caused by an employee, depending on the amount of damage caused, the decision to recover damages can be made by the employer (in the form of his order (order)) or the court (in the form of a decision). If the amount of damage caused does not exceed the average monthly earnings, then the recovery of the amounts due from the employee is carried out by order (order) of the employer. The employer may issue such an order (order) no later than one month from the date of the final determination of the amount of damage caused by the employee. The employee's consent is not required in this case. If the monthly period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can be carried out only on the basis of a court decision.

According to Art. 248 of the Labor Code of the Russian Federation, an employee guilty of causing damage to an employer may voluntarily compensate it in full or in part. Voluntary consent must be expressed in writing- in the commitment. The absence of written evidence confirming the employee’s voluntary consent to compensation for damage to the employer, in the event of a dispute, deprives the employer’s representatives of the right to refer to witness testimony for confirmation given consent. In the event of the dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.

Yu.N. Poletaev believes that the rule on voluntary compensation by an employee for damage to an employer is contrary to the Constitution of the Russian Federation, which establishes that no one can be deprived of his property except by a court decision (part 3 of article 35). The specified rule on the retention of any property only on the basis of a court decision can be extended to the wages of an employee who compensates the employer for material damage caused by an unlawful guilty action (inaction).

O.V. Abramova, pointing out the fallacy of this judgment, explained that the rule on the possibility of voluntary compensation by the employee for damage does not give grounds for concluding that the employee acting in accordance with this rule is deprived of wages as a result of the deduction. The employee himself voluntarily admits his guilt and pays the amounts due from him in compensation for damage. As for wages, they are paid to him in full. This position seems to be well founded.

For employees, there are shorter deadlines than for the employer for applying to the court for resolving a dispute on compensation for damages. So, for an employee, such a period is three months from the day when he found out or should have found out about the violation of his right, and for disputes about dismissal - one month from the day he was given a copy of the dismissal order or from the date the work book was issued. The employer has the right to apply to the court within one year from the date of discovery of the damage (Article 392 of the Labor Code of the Russian Federation). Violation of the rules established by the Labor Code of the Russian Federation on the time limits for applying to the court for resolving a dispute on compensation for damage deprives the party of the opportunity to receive this compensation.

Thus, OAO Pervy Avtokombinat filed a claim against V. for damages in recourse, explaining that on October 6, 2003, through the fault of V., an accident occurred involving a car belonging to OAO Pervy Kombinat, driven by driver V. and car "Chevrolet Blazer", owned by OAO "NIIES". As a result of an accident, mechanical damage was caused to a Chevrolet Blazer car, the total amount of damage was 114,926 rubles. 5 kop. By payment order, the specified amount was transferred to the settlement account of OAO NIIES. V. did not give consent to deduct the amount of damage from wages. The plaintiff asks to recover from the defendant in recourse 114 926 RUB. 5 kop. and expenses for state duty 2749 RUB. 5 kop. Defendant V. did not recognize the claim, explained that he did not dispute his guilt in the accident, but did not consider himself to have committed an administrative offense, since more than a year had passed since he was brought to administrative responsibility. In addition, according to part 3 of Art. 392 of the Labor Code of the Russian Federation, the employer has the right to apply to the court on disputes regarding compensation by the employee for damage caused to the organization within a year from the date of discovery of the damage caused. This deadline has been missed by the plaintiff. The Krasnogorsk City Court of the Moscow Region was guided by the fact that the claim against V. was brought by the plaintiff by way of recourse, therefore the term for defending the right under the claim is general - three years and the plaintiff has not missed. By the decision of the Krasnogorsk City Court of the Moscow Region dated July 14, 2005, the claims of OAO First Avtokombinat were partially satisfied. However, the court decision was canceled by the Judicial Collegium for Civil Cases of the Moscow regional court, and the claims of JSC "First Avtokombinat" to V. were left without satisfaction. In its determination, the Judicial Board was guided by the following. In accordance with Part 2 of Art. 392 of the Labor Code of the Russian Federation, the employer has the right to apply to the court for disputes on compensation by the employee for damage caused to the organization within a year from the date of discovery of the damage caused. It follows from the materials of the case that V. at the time of the accident was in an employment relationship with OAO Perviy Kombinat. The road accident happened on October 6, 2003. By the payment order dated December 11, 2003, the amount of damages of JSC "First Combine" was transferred to the settlement account of JSC "NIIES". To court with the present statement of claim OAO Perviy Kombinat applied on April 13, 2005. Taking into account these circumstances, the Judicial Board considers that the plaintiff missed the deadline for filing a claim for damages with the court. The plaintiff did not present any valid reasons for missing the deadline for applying to the court. The conclusion of the Krasnogorsk city court that the deadline for filing a lawsuit has not been missed, since the plaintiff filed a recourse claim, is erroneous, since in this case the disputed legal relations between the enterprise and its employee on compensation for harm caused by the employee are regulated by labor legislation.

It should be noted that if the employer filed a claim within the prescribed period, then the arguments of the defendant (employee) that he does not consider himself to have committed an administrative offense, since more than a year has passed since he was brought to administrative responsibility, could not be the basis for refusing to lawsuit, since n. 6 h. 1 Article. 243 of the Labor Code of the Russian Federation considers the commission of an administrative offense to be a condition for the onset of full liability, and this fact was established by a resolution on administrative offense and was not disputed by the respondent.

Guilt as a condition for the onset of liability is differentiated for the employee and the employer.

By general rule the obligation to prove the fault of the inflictor of damage lies with the party that suffered the damage. An exception has been established for this rule regarding cases of full material liability of employees. If the employer proves the legitimacy of concluding an agreement with the employee on full liability and that the employee has a shortage, the latter is obliged to prove that he is not guilty of causing damage.

O.I. Novikova proposes, with regard to the liability of the employer for damage caused to the employee, to supplement the Labor Code of the Russian Federation with a rule on the presumption of guilt of the tortfeasor, emphasizing that the innocence of the employer in causing harm to the employee must be proved by him. In her opinion, this would strike a reasonable balance, since, as a rule, the employee has less opportunity to prove the guilt of the employer.

The fault of the employee may be in the form of intent or in the form of negligence. At the same time, liability arises for any form of guilt, but the form of guilt, as already mentioned, can affect the amount of the employee's liability. For the liability of the employer, the form of guilt does not matter. Moreover, in some cases, the legislator provides for compensation by the employer for damages, regardless of his fault. For example, according to Art. 236 of the Labor Code of the Russian Federation, the employer's obligation to pay monetary compensation (interest for the employer's violation of the established deadline for paying wages and other payments due to the employee) arises regardless of the employer's fault. Similar rules on liability, regardless of the employer's fault, are included in the transport codes (Article 59 of the Code of Merchant Shipping of the Russian Federation, Article 28 of the Code of Internal water transport RF).

The unlawful behavior (action or inaction) of the damage cause is not only the guilty failure to perform or improper performance by the employee or employer of their duties, abuse of authority, but also the violation of laws or by-laws, the terms of the collective or labor contract. Illegal is such behavior of an employee (employer) in which he violates his obligations, defined in Art. 21 (22) of the Labor Code of the Russian Federation. If the employee did not take actions that would prevent damage, because this was not part of his job duties, his inaction cannot be qualified as a condition necessary for holding the employee liable, even if this did not pose a serious risk to him.

Only in relation to the material liability of an employee, the law allows the possibility of reducing the amount of damages to be compensated or completely exempting them from compensation. So, in accordance with Art. 250 of the Labor Code of the Russian Federation review body labor disputes has the right to reduce the amount of damages to be recovered from the employee. As the Plenum of the Armed Forces of the Russian Federation explained in clause 16 of Resolution No. 52 of November 16, 2006 "On the application by courts of legislation governing the liability of employees for damage caused to the employer", a reduction in the amount of damage is possible in cases of both full and limited liability, as well as with collective (team) responsibility. However, according to part 2 of Art. 250 of the Labor Code of the Russian Federation, a reduction in the amount of damage to be recovered from an employee cannot be made if the damage was caused by a crime committed for personal gain.

The court may reduce the amount of amounts to be recovered, taking into account the degree and form of guilt, financial situation employee, as well as other specific circumstances. The said Resolution notes that when assessing the financial situation of an employee, one should take into account his property status (the amount of earnings, other basic and additional income), his marital status (the number of family members, the presence of dependents, deductions for executive documents) etc. The employer does not have a similar right to reduce damages. Some scholars in the field of labor law suggest that it is necessary to provide for a rule on the possibility of reducing the amount of amounts to be recovered, based on the financial and economic situation of the employer. However, in our opinion, since it is the employee who is economically more weak side in labor relations, such a proposal is hardly justified. In addition, it does not comply with the provisions of Part 1 of Art. 235 and part 2 of Art. 232 of the Labor Code of the Russian Federation, which obliges the employer to compensate for the damage in full and does not allow its reduction.

The law also establishes circumstances for the employee that exclude the possibility of bringing him to liability. In particular, art. 239 of the Labor Code of the Russian Federation, such circumstances include the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to ensure proper conditions for storing property entrusted to the employee.

There is no definition of these concepts in the labor legislation. The concept of normal economic risk based on the concept formulated in the legal literature is given in the aforementioned Decree of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52.

The actions of an employee that correspond to modern knowledge and experience, when the set goal could not be achieved otherwise, the employee duly fulfilled the tasks assigned to him, can be attributed to normal economic risk. official duties, showed a certain degree of care and discretion, took measures to prevent damage and the object of risk was material values, and not the life and health of people (paragraph 5 of the said Resolution of the Plenum).

Such concepts as "force majeure", "extreme necessity" and "necessary defense" are revealed in other branches of law.

The employee is obliged to compensate the employer for the direct actual damage caused to him. Unreceived income (lost profit) is not subject to recovery from the employee.

Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.

Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.

Article 239. Circumstances excluding material liability of an employee

The material liability of the employee is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

Article 240

The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the property of the organization may restrict the specified right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local governments, founding documents organizations.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

Article 241. Limits of material liability of an employee

For the damage caused, the employee shall be liable within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.

Article 242. Full liability of an employee

The full liability of the employee consists in his obligation to compensate the direct actual damage caused to the employer in full.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

Liability in the full amount of the damage caused may be imposed on the employee only in cases provided for by this Code or other federal laws.

Employees under the age of eighteen bear full financial responsibility only for the intentional infliction of damage, for damage caused in a state of alcoholic, narcotic or other toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

Article 243. Cases of full liability

Liability in the full amount of the damage caused is assigned to the employee in the following cases:

1) when, in accordance with this Code or other federal laws, the employee is held liable in full for the damage caused to the employer in the performance of the employee's labor duties;

2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;

3) intentional infliction of damage;

4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;

(As amended by Federal Law No. 90-FZ of June 30, 2006)

5) infliction of damage as a result of the criminal actions of the employee, established by a court verdict;

6) causing damage as a result of an administrative offense, if such is established by the relevant state body;

7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;

(As amended by Federal Law No. 90-FZ of June 30, 2006)

8) infliction of damage not in the performance of labor duties by the employee.

Liability in the full amount of the damage caused to the employer can be established by an employment contract concluded with the deputies of the head of the organization, the chief accountant.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

Article 244. Written agreements on the full liability of employees

Written agreements on full individual or collective (team) liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the lack of property entrusted to employees, may be concluded with employees who have reached the age of eighteen years and directly serving or using monetary, commodity values or other property.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

The lists of works and categories of employees with whom these contracts may be concluded, as well as the standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

Article 245

When employees jointly perform certain types of work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to them, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full, collective (brigade) liability may be introduced.

A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).

Under an agreement on collective (brigade) material liability, valuables are entrusted to a predetermined group of persons who are fully liable for their shortage. To be released from liability, a member of the team (team) must prove the absence of his guilt.

In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.

Article 246. Determining the amount of damage caused

The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses calculated on the basis of market prices in force in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property.

The federal law may establish a special procedure for determining the amount of damage to be compensated caused to the employer by theft, deliberate damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.

Article 247

Before making a decision on compensation for damages by specific employees, the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists.

Requesting a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

The employee and (or) his representative have the right to get acquainted with all the materials of the inspection and appeal against them in the manner prescribed by this Code.

Article 248. Procedure for recovery of damage

Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order may be made no later than one month from the date of the final determination by the employer of the amount of damage caused by the employee.

If the one-month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.

(As amended by Federal Law No. 90-FZ of June 30, 2006)

If the employer fails to comply with the established procedure for recovering damages, the employee has the right to appeal against the actions of the employer in court.

An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage with installment payment is allowed. In this case, the employee submits to the employer a written obligation to compensate for the damage, indicating specific payment terms. In the event of the dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is recovered in court.

With the consent of the employer, the employee may transfer to him equivalent property to compensate for the damage caused or repair the damaged property.

Compensation for damages is made regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inaction that caused damage to the employer.

Article 249. Reimbursement of expenses associated with employee training

(As amended by Federal Law No. 90-FZ of June 30, 2006)

In the event of dismissal without good reasons before the expiration of the period stipulated by the employment contract or training agreement at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after the end of training, unless otherwise provided by the employment contract or training agreement.

Article 250

The labor dispute resolution body may, taking into account the degree and form of fault, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.

Reduction of the amount of damage to be recovered from the employee is not carried out if the damage was caused by a crime committed for mercenary purposes.

According to article 21 of the Labor Code of the Russian Federation, each employee is obliged to respect the property that belongs to his official boss or colleagues. Neglect of these rules is fraught with bringing the employee to liability for the damage caused.

On the grounds for the onset of liability, as well as its types, read in this article.

How is it regulated?

Liability for damage caused to the employer is regulated by the Labor Code, namely Articles 21 and 238.

Thus, according to Article 238 of the Labor Code of the Russian Federation, damage caused by an employee to an employer should entail his immediate liability.

According to Article 21 of the Labor Code of the Russian Federation, the employee is obliged to respect all property located on the territory of the organization in which he works.

The Labor Code provides for bilateral liability. What does it mean? That in the event of damage caused by both the employer to the employee, and vice versa, both should bear material responsibility, according to the Law.

In this article, we will consider the conditions for incurring liability by an employee who caused damage to his employer.

Features of the employee's liability

The liability of an employee for damage caused to the employer has a number of specific features. These include:

The subordinate is obliged to compensate his superior only for direct damage. What is direct damage? For example, if an employee broke working special equipment. If the employee could not bring to his employer the profit that he expected from him, then this is not considered damage caused and the employee should not be held liable for such “damage”;
The subordinate is obliged to compensate for the damage not only for the direct damage that he caused to the employer, but also for that which the employer had to compensate the employer to other persons as a result of the damage suffered;
An employee may be released from the need to bear material liability for causing direct damage to the employer on the basis of Article 239 of the Labor Code of the Russian Federation. This article provides for a number of conditions under which an employee may not be liable.

When is an employee not liable?

Article 239 of the Labor Code of the Russian Federation provides for a number of circumstances in which an employee causes damage to an employer, in the presence of which he may not be liable. Such damages include:

Irresistible force;

Article 202 of the Civil Code of the Russian Federation defines the concept of "force majeure". Such force is understood as the unforeseen occurrence of some circumstance, the outcome of which no one can influence. Example: natural phenomena (floods, earthquakes, landslides, fire, etc.), social phenomena (war, an outbreak of some kind of epidemic, etc.).

Presence of foreseen normal risk;

Russian legislation does not define the concept of “normal risk”.

However, if you turn to scientific sources, then normal risk means:

Performing work involving risk;

For example, drilling, as a result of which the drilling apparatus may be damaged. Since drilling itself is risky kind activities, the occurrence of breakdowns is considered the norm. Therefore, the employee who broke the drilling apparatus is not obliged to bear financial responsibility;

Performing work in which the probability of occurrence of risk is not so obvious, but it is probable;
Performance of work associated not with material risk, but with the risk of damage to the health and life of working citizens;

The normal risk is the exploitation of new inventions, the introduction of innovative methods for solving problems with which workers are just beginning to get acquainted.

What is not considered a normal risk? When an employer forces an employee to perform some task that cannot be performed without serious consequences.

If the employer forces his subordinate to perform too risky tasks, then, according to paragraph 9 of Article 81 of the Labor Code of the Russian Federation, he must be demoted in his position and incur liability instead of the employee.

In addition to the above, the employee should not be liable for causing material damage to the employer if:

The actions of the employee that caused the damage were taken due to extreme necessity or self-defense;

This item is described in detail in Article 37 of the Criminal Code of the Russian Federation. According to him, the infliction of damage (both material and bodily) is not such if the employee's actions were aimed at their own defense or the defense of other people.

The use of defensive actions is appropriate in the event of a threat to the life and health of an employee (for example, the threat of violence);

According to article 39 of the Criminal Code of the Russian Federation, an employee can cause damage if it becomes absolutely necessary. In this case, the employee can apply any means to protect his identity or the identity of his colleagues at work.

If the employer has not provided appropriate conditions in which the employee can safely perform his work duties, without fear of risk or other serious consequences that entail damage.
If it is necessary to bear material liability for the damage caused, the employee can only compensate for a part of the damage equal to the average level of his salary;

If the amount of damage exceeds the average wage of the worker, then he will pay it in installments.

Types

The material liability of an employee has the following types:

limited;
Full;
Collective;

Let's analyze each separately

Limited liability

Limited material liability applies when the employer agrees with the employee on a fixed amount of material compensation, which does not exceed the average wage of the employee. In this case, the employee pays only a part of the damage caused, therefore this type of liability is called limited.

The legislation does not specify in which cases of damage to the employer should be applied limited liability. The choice of responsibility falls on the shoulders of the employer.

Read about how the employee compensates the employer for damages.

Full responsibility

Full material liability arises when the amount of damage caused by the employee does not exceed the average level of wages of work. In this case, the employee compensates the full amount of the damage caused.

How is it calculated average level employee wages? The last twelve months of payroll are taken as the basis, after which the average amount that the employee received monthly is displayed.

According to Article 242 of the Labor Code of the Russian Federation, the full liability of an employee means the need to compensate for the entire amount of damage caused, even if it exceeds the average monthly salary.

Full liability applies in cases provided for by the Labor Code. So, according to Article 242 of the Labor Code of the Russian Federation, an employee who has not reached the age of majority may be held liable if:

If it is proved that the damage to the employer was caused by the employee intentionally;

In order for the employee to bear full liability for causing damage to the property of the employer, the latter must prove the fact of intent.

In case of intentional damage, both an adult and a minor employee can be held liable.

Causing intentional damage to the property of the employer, which was not entrusted to the use of the employee, also entails bringing to full liability.

If the employee caused damage under the influence of alcohol, drugs or other psychotropic drugs;

Being at the workplace under the influence of alcohol or drugs threatens the employee with full liability, regardless of what property (entrusted for use or outside) was damaged by him.

If the damage was caused in the course of some serious misconduct (criminal or administrative nature);

In order for a citizen to be held liable on the basis of a criminal or administrative violation committed by him, the employer needs to obtain a document confirming the commission of such an offense, namely a court order.

If an employee was deprived of liberty for a crime committed, this does not relieve him of the need to bear material responsibility, but only is transferred to the period of time when he is released.

In no other cases, an employee who has not reached the age of majority can be held fully liable.

As for bringing adult workers to full liability, then, according to Article 243 of the Labor Code of the Russian Federation, it can occur in the following cases:

When the employee allowed damage to the property of the employer in the course of performing his duties;

An important nuance! The full liability of the employee must be approved at the federal level.

Collective responsibility

Collective liability is applied when a group of employees on a contractual basis was entrusted with any valuables (for storage, processing, transportation, etc.), however, after the employer recorded their shortage. attraction to collective responsibility has the following features:

Bringing to collective responsibility occurs on the basis of Article 244 of the Labor Code of the Russian Federation.
Liability of this type is permissible only for employees who have reached the age of majority.
Collective responsibility applies when it is impossible to determine which of the members working group responsible for causing damage;
In accordance with Article 245 of the Labor Code of the Russian Federation, if damage is caused by a group of persons, they are charged the full amount of compensation. There is no limited compensation when concluding a collective liability agreement;
In accordance with Article 245 of the Labor Code of the Russian Federation, the amount of compensation between employees who are brought to collective responsibility is determined either independently during the negotiations of the collective, or in court;

Liability for labor law consists in the obligation of one of the parties to the employment contract (employer or employee) to compensate for the damage caused by the other party as a result of guilty unlawful failure to fulfill their labor duties. In this case, each of the parties to the employment contract is obliged to prove the amount of damage caused to it.

In accordance with Art. 234 of the Labor Code of the Russian Federation the employer is obliged to compensate the employee for unpaid wages in all cases of unlawful deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of:

? illegal suspension an employee from work, his dismissal or transfer to another job;
? 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 in his previous job;
? delays by the employer in issuing a work book to an employee, making work book incorrect or inconsistent with the law formulation of the reason for the dismissal of the employee.

The employer who caused damage to employee property reimburse this damage in full. The amount of damage is calculated at market prices in force in the area at the time of compensation for damage.

With the consent of the employee, the damage can be compensated in kind.

The employee's claim for damages is sent to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the decision of the employer or does not receive a response within the prescribed period, the employee has the right to go to court.

In case of violation by the employer of the established the term of payment of wages, vacation pay, payments upon dismissal and other payments, due to the employee, the employer is obliged to pay them with the payment of interest (monetary compensation) in the amount of not less than one three hundredth of the current refinancing rate Central Bank RF from the amounts not paid on time for each day of delay, starting from the next day after the due date of payment up to and including the day of actual settlement. The specific amount of monetary compensation paid to an employee is determined by a collective agreement or an employment contract.

Moral injury, caused to the employee by unlawful actions or inaction of the employer, is compensated to the employee in monetary form in amounts determined by agreement of the parties to the employment contract.

In the event of a dispute, the fact of causing moral damage to an employee and the amount of its compensation are determined by the court, regardless of the property damage subject to compensation.

The employee in accordance with Art. 238 of the Labor Code of the Russian Federation is obliged to compensate the employer for the damage caused to him direct actual damage. Unreceived income (lost profit) is not subject to recovery from the employee.

Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration of property.

The employee is liable both for direct actual damage directly caused by him to the employer, and for damage incurred by the employer as a result of compensation for damage to other persons.

The employee is liable for any damage caused within their average monthly income, unless otherwise provided by the Labor Code of the Russian Federation or other federal laws (Article 241 of the Labor Code of the Russian Federation).

The employer has the right, taking into account the specific circumstances under which the damage was caused, to fully or partially refuse to recover it from the guilty employee.

Full financial responsibility of the employee It is his obligation to compensate for the damage caused in full.

Employees under the age of 18 in accordance with Art. 247 of the Labor Code of the Russian Federation bear full liability only for intentional damage, for damage caused in a state of alcoholic, narcotic or toxic intoxication, as well as for damage caused as a result of a crime or administrative offense.

Liability in the full amount of the damage caused is assigned to the employee in the following cases (Article 243 of the Labor Code of the Russian Federation):

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is held liable in full for damage caused to the employer in the performance of labor duties by the employee;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) infliction of damage in a state of alcoholic, narcotic or other toxic intoxication;
5) infliction of damage as a result of the criminal actions of the employee, established by a court verdict;
6) causing damage as a result of an administrative offense, if such is established by the relevant state body;
7) disclosure of information constituting a legally protected secret (state, official, commercial or other), in cases provided for by federal laws;
8) infliction of damage not in the performance of labor duties by the employee.

Liability for the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy head, chief accountant.

Written contracts for full individual or collective(brigade) financial liability (concluded with employees who have reached the age 18 years and directly serving or using monetary, commodity values or other property (Article 244 of the Labor Code of the Russian Federation).

In addition to the individual type of liability, the joint type of liability of the collective (team) of workers to the employer for material damage caused to him is common. Typically, this type of liability is introduced in the performance of work related to the storage, processing, sale (vacation), transportation, use or other use of the values transferred to the team, when it is impossible to distinguish between the responsibility of each employee for causing damage and conclude an agreement with him on compensation for damage in full .

A written agreement on collective (team) liability for damage is concluded between the employer and all members of the team (team).