Theory of everything. Withholding from wages - the procedure for deductions under the Labor Code of the Russian Federation Art 137 of the Labor Code of the Russian Federation in a new edition

New edition Art. 137 of the Labor Code of the Russian Federation

Deductions from the employee's wages are made only in cases provided for by this Code and other federal laws.

Deductions from the employee's salary to pay off his debt to the employer can be made:

to reimburse the unworked advance payment issued to the employee on account of wages;

to pay off an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;

to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, in the event that the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this of the Code);

upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of the first part of Article 77 or paragraphs 1, 2 or 4 of the first part of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of this Code.

In the cases provided for in paragraphs two, three and four of part two of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of deduction.

counting error;

if the body for the consideration of individual labor disputes has recognized the fault of the employee in failure to comply with labor standards (part three of Article 155 of this Code) or simple (part three of Article 157 of this Code);

Commentary on Article 137 of the Labor Code of the Russian Federation

Deductions from wages are made:

1) by virtue of law - income tax and insurance contributions to the Pension Fund;

2) by court decisions - fines imposed in an administrative manner, when serving correctional labor for committing a crime, when compensating for damage caused by the parties to an employment relationship;

3) by order of the employer.

The law establishes that deductions from wages at the initiative of the employer can be made only in expressly provided cases:

1) to compensate for the unworked advance payment issued to the employee on account of wages;

2) to pay off an unused advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;

3) to return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee in case of non-compliance with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or downtime due to the fault of the employee (part 3 of article 157 of the Labor Code) code of the Russian Federation);

4) upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 or paragraph 1, 2 or paragraph 4 of part 1 of Art. 81, paragraphs 1, 2, 5, 6 and 7 of Art. 83 of the Labor Code of the Russian Federation.

In all other cases, deductions are made by filing a lawsuit by the employer in court. In the cases listed above (with the exception of the recovery of an unearned advance), the employer may issue an appropriate order no later than one month.

Wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in the following cases:

counting error;

if the body for consideration of individual labor disputes recognizes the fault of the employee in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or idle time (part 3 of article 157 of the Labor Code of the Russian Federation);

if wages were overpaid to the employee in connection with his illegal actions established by the court.

Another commentary on Art. 137 of the Labor Code of the Russian Federation

1. Article 137 of the Labor Code of the Russian Federation establishes the grounds for deductions from the employee's wages. Deductions may be made only in cases stipulated by the Labor Code or other federal laws. By establishing a ban on deductions, in addition to the cases established by laws, the protection of the wages of employees is ensured.

2. Content of Art. 137 of the Labor Code of the Russian Federation corresponds to the provisions of the ILO Convention N 95 "On the Protection of Wages". Article 8 of the Convention provides that deductions from wages may be made under the conditions and within the limits prescribed by national law or defined in collective agreements or arbitration awards. Workers should be advised of the conditions and limits of such deductions. It is important to emphasize that Russian legislation does not provide for the possibility of deductions from wages on the basis of a collective agreement, since such conditions would worsen the position of the employee in comparison with the law.

No deductions are allowed at the discretion of the employer related to the imposition on the employee of part of the production costs, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee.

3. Currently, other codes and federal laws establish the possibility of deductions from wages when levying taxes on personal income, when collecting administrative fines, fines as a criminal punishment, when serving a sentence in the form of corrective labor, when executing court decisions.

4. Deductions for the purpose of levying tax on personal income are made in accordance with the Tax Code. provides that organizations from which the taxpayer receives income are required to calculate, withhold from the taxpayer and pay the amount of the accrued tax on the income of individuals. These deductions must be made directly from the income of the taxpayer when they are actually paid. However, the amount of tax withheld cannot exceed 50% of the amount of the payment.

5. In accordance with Art. 32.2 of the Code of Administrative Offenses of the Russian Federation, an administrative fine must be paid by a person brought to administrative responsibility by depositing or transferring the amount of the fine to a bank or other credit organization. In case of non-payment of an administrative fine on time, a copy of the decision to impose a fine is sent by the judge (body, official) who issued the decision to the employer at the place of work held liable to deduct the amount of the fine from the salary.

6. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Penal Code of the Russian Federation, a person sentenced to a fine is obliged to pay it within 30 days from the date the sentence enters into force. In case of non-payment of the fine, levy is voluntarily levied on the property of the convict, while if the amount of the fine does not exceed two minimum wages, in the absence of property or insufficiency of property to fully pay off the amount of the fine, levy may be levied on wages. Execution of punishment in the form of a fine is assigned to bailiffs.

7. Deductions by virtue of a court decision are also made when an employee is serving correctional labor as a punishment for a criminal offense. The basis for the production of such deductions is the verdict of the court. In accordance with Art. 40 of the Criminal Executive Code of the Russian Federation, deductions are made from the wages of the convict in the amount established by the court verdict. The correct and timely deduction from the wages of the convicted person and the transfer of the amount of deduction in the prescribed manner is entrusted to the employer. The procedure for the production of deductions is established by Art. 44 PEC.

8. Deductions from wages are also possible on the basis of writ of execution - writ of execution issued on the basis of a decision, sentence, ruling and resolution of courts (judges); settlement agreements approved by the court; court orders, etc. In accordance with Art. 64 of the Federal Law of July 21, 1997 N 119-FZ (as amended on November 3, 2006) "On Enforcement Proceedings", wages may be levied: when collecting periodic payments; when recovering amounts not exceeding two minimum wages; in the absence of the debtor's property, which can be levied. Writs of execution and other executive documents are sent to the employer for recovery.

9. The Labor Code provides for the possibility of deductions from wages to pay off the employee's debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as in order to compensate the employee for property damage caused to the employer.

On the procedure for compensation by the employee of property damage caused to the employer, see Art. 248 of the Labor Code of the Russian Federation and commentary to it.

10. An employee's debt to the employer may arise as a result of the issuance of an advance payment to the employee on account of wages or in connection with a business trip or transfer to work in another locality. In the event that the employee has not worked off such an advance or has not used the amount issued in advance for the purposes of a business trip or moving to another area and does not return it voluntarily, its amount may be deducted from the employee's salary.

For amounts issued to an employee on business trips, see Art. 168 of the Labor Code of the Russian Federation and commentary to it.

11. An employer's order to withhold an advance from wages can be made under two conditions:

The employee does not dispute the grounds and amounts of deductions;

The order is made no later than one month from the date of expiration of the period established for the return of the advance.

12. The employee's objections to the grounds and amounts of deductions must be expressed in writing. At the same time, he may refer to the illegality or unreasonableness of the return of the indicated amounts, as well as to the incorrect determination of their amounts.

13. The monthly period starts from the day set for the return of the advance.

When returning an unworked advance payment issued on account of wages, such a period is established by agreement of the parties to the employment contract.

For an advance issued for a business trip, the return period is three days after the employee returns from a business trip (clause 19 of the Instruction on business trips, approved by the Decree of the USSR Ministry of Finance, the USSR State Labor Committee and the All-Union Central Council of Trade Unions of April 7, 1988 (Bulletin of the USSR State Labor Committee. 1988 .N 8)).

14. Debt to the employer may also arise in the event of payment of excessive amounts to the employee due to a counting error. Counting error should be understood as an error in arithmetic operations when calculating the amounts payable. An employer's order to withhold from wages amounts overpaid due to a counting error is possible in the absence of a dispute with the employee regarding the grounds and amounts of these deductions, provided that the order is made within a month from the date of payment of incorrectly calculated amounts. If the employer misses a month, the amounts overpaid to the employee may be recovered in court.

Are not the result of an accounting error and are not refundable for amounts overpaid due to the misapplication of wage legislation, a collective agreement, agreement or employment contract.

15. Amounts overpaid to an employee are subject to withholding if the body for consideration of an individual labor dispute recognizes the employee's guilt in non-fulfillment of production standards or in idle time.

For wages in case of non-fulfillment of production standards, see Art. 155 of the Labor Code of the Russian Federation and commentary to it.

For wages during downtime, see Art. 157 of the Labor Code of the Russian Federation and commentary to it.

16. The amounts paid to the employee as payment for vacation are subject to deduction in case of his dismissal before the end of the working year for which the vacation was granted.

For the procedure for granting holidays, see her.

In case of dismissal of an employee before the expiration of the working year for which the leave is granted, deductions are made at the final settlement with the employee. This rule does not apply when an employee is dismissed for the following reasons:

If the employee refuses to be transferred to another job, which is necessary for him in accordance with the medical certificate issued in the prescribed manner (clause 8 of article 77 of the Labor Code of the Russian Federation);

In connection with the liquidation of the organization or the termination of activities by the employer - an individual (clause 1 of article 81 of the Labor Code of the Russian Federation);

In connection with a reduction in the number or staff of employees (clause 2 of article 81 of the Labor Code of the Russian Federation);

In relation to the head of the organization, his deputies and the chief accountant - in connection with a change in the owner of the organization's property (clause 4, article 81 of the Labor Code of the Russian Federation);

In connection with the conscription of an employee for military service or sending him to an alternative civilian service that replaces it (clause 1, article 83 of the Labor Code of the Russian Federation);

In connection with the reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83 of the Labor Code of the Russian Federation);

In connection with the recognition of an employee as completely disabled in accordance with a medical report (clause 5, article 83 of the Labor Code of the Russian Federation);

In connection with the death of an employee or employer - an individual, as well as the recognition by the court of an employee or employer - an individual as dead or missing (clause 6 of article 83 of the Labor Code of the Russian Federation);

In connection with the onset of emergency circumstances that prevent the continuation of labor relations (clause 7, article 83 of the Labor Code of the Russian Federation).

17. The amounts overpaid to the employee in connection with his illegal actions established by the court are subject to deduction. For this type of deduction, Art. 137 of the Labor Code of the Russian Federation does not provide for special rules. Since the illegality of the employee's actions was established by the court, the amount to be withheld is also established in court. The deduction itself in this case is carried out according to the rules established for deductions on the basis of a court decision.

• Up

In Art. 137, 138 of the Labor Code of the Russian Federation establishes the procedure for deducting amounts from an employee's earnings and limits on their size. Deductions are allowed only in cases provided for by the Labor Code and federal laws. The establishment of rules and restrictions is aimed at ensuring the protection of the rights of workers to wages.

General order

Deductions from the employee's earnings to pay off his debt to the employer are carried out in order to:

• Compensation for the unworked advance payment provided to the employee on account of salary.
• Repayment of an unspent and unreturned advance payment provided to an employee in connection with a transfer to another location for another job or a business trip, or in other cases.
• Reimbursement of amounts paid to an employee in connection with accounting errors, if the employee is found guilty of non-compliance with labor standards or in idle time. In the latter case, the basis is the decision of the body authorized to consider individual labor disputes.

According to provisions h. 2 Article. 137 of the Labor Code of the Russian Federation, deductions are allowed upon dismissal of an employee until the end of the year on account of which paid leave was provided. Withholding is made for non-worked days. An exception to the rule, according to Art. 137 of the Labor Code of the Russian Federation, there are cases of termination of the contract on the grounds established in article 77 (part 1, clause 8), art. 81 (part 1 item 1, 2, 4), Art. 83 (p. 1, 2, 5, 6, 7).

Timing

As established in Part 3 of Art. 137 of the Labor Code of the Russian Federation, the employer may issue an order to withhold those specified in par. 2, 3, 4 of the second part of the norm, before the expiration of 1 month. from the date of expiration of the period allotted for the return of an advance, incorrectly calculated payments or repayment of debts. This rule applies if the employee does not object to the grounds and amount of deduction.

Exceptions

They are provided for in Part 4 of Art. 137 of the Labor Code of the Russian Federation. Salary overpaid to an employee cannot be recovered from him, except in the following cases:

• Mistakes in calculations.
• When a citizen is found guilty of idle time or non-compliance with labor standards, which is confirmed by the commission on labor disputes.
• Excessive payment of earnings due to illegal actions of an employee established by the court.

Art. 137 of the Labor Code of the Russian Federation with comments

The content of the norm is consistent with the provisions of the ILO Convention on the Protection of Wages. Article 8 of this document provides that deductions from earnings can be made within the limits and in the manner prescribed in national legislation, in collective agreements or decisions of arbitration courts. Employees must be familiar with the established rules.

It should be noted that domestic legislation does not provide for the possibility of making deductions on the basis of a collective agreement, since the relevant conditions would worsen the position of a citizen in comparison with those established by law, which is unacceptable.

Any deductions at the discretion of the employer related to the imposition on the employee of part of the production costs, satisfaction of claims brought by third parties to both parties of legal relations (employer and employee) without a court decision or the consent of the employee are prohibited.

Taxation

Within the meaning of paragraph 1 of Art. 137 of the Labor Code of the Russian Federation, deduction from an employee's earnings can be carried out in the case expressly established in federal law. Currently, the Tax Code provides for the obligation of the employer as a tax agent to calculate and transfer personal income tax to the budget.

Tax deductions are made according to the rules of art. 226 NK. At the same time, its amount cannot exceed 50% of the salary. Withholding is made directly from income at the time of actual payment.

fines

They also apply to deductions permitted by Art. 137 of the Labor Code of the Russian Federation. The Code of Administrative Offenses contains Art. 32.2, according to the provisions of which the fine must be paid by transferring / depositing a specified amount to a banking or other organization.

In case of non-payment on time, a copy of the resolution on the imposition of this administrative sanction is sent by the authorized body / employee to the employer for the forced deduction of the amount from the earnings of the perpetrator.

A fine can also be imposed on the perpetrator as a criminal punishment. The recovery of the established amount is carried out by a court verdict.

As established by 31, a person must deduct the fine imputed to him before the expiration of a month from the date the court decision enters into force.

If the order is not executed voluntarily within the prescribed period, the penalty may be applied to the property of the perpetrator. If the amount of the penalty is less than 2 minimum wages, the material assets of the person are not enough to pay off the debt, it is allowed to deduct the amount from the earnings of the perpetrator. Control over the execution of court orders is entrusted to employees of the FSSP.

Deductions during corrective labor

They are also made on the basis of a sentence.

According to the provisions of Article 40 of the Penal Code, deductions are made from the earnings of the convict in the amount determined by the court. The timely and correct collection of the established amounts is the responsibility of the employer. The retention rules are enshrined in article 44 of the PEC.

Enforcement proceedings

It is carried out on the basis of documents issued by court orders / decisions, settlement agreements, etc.

According to Article 64 of the Federal Law No. 119, deductions from wages can be carried out to recover:

• periodic payments;
• amounts not exceeding 2 minimum wages;
• debts in the absence of the debtor's property sufficient to pay off obligations.

Nuance

The legislation provides for the possibility of making a deduction from the salary to pay off the employee's debt to the employer in the cases established by Art. 137 of the Labor Code of the Russian Federation, and as compensation to the latter for property damage.

The rules for compensation for losses to the employer are enshrined in Article 248.

Advance debt

Unused funds issued to an employee in connection with a business trip, transfer, etc., must be returned to them voluntarily. The employee must report on the costs incurred. In case of evading the return, the amounts will be collected by force.

In this case, 2 conditions must be met:

• The employee does not dispute the grounds and amount of the penalty.
• The employer issued an order before the expiration of a month from the date of expiration of the period provided for the return of advance amounts.

Explanations for Part 3

Employee objections must be in writing. The employee in his application may refer to the illegality / unreasonable deduction of amounts, as well as the incorrect determination of the amount of the penalty.

The term for the return of the unworked advance payment provided on account of the salary is determined by agreement of the parties. For amounts issued in connection with a business trip, the refund period is 3 days from the date of return of the employee.

Unworked vacation days

When an employee is dismissed before the end of the year in which he was granted leave, the deductions provided for in norm 137 are made at the time of the Rule for the provision of paid rest days, article 122 of the Code fixes.

The list of exceptions to this rule is expressly enshrined in Part 3 of Article 137 and is considered exhaustive.

Counting error

In practice, cases of excessive payment of salary amounts to a citizen due to incorrect arithmetic actions of the person responsible for the calculations are not uncommon.

To withhold such amounts, the 2 conditions mentioned above must be met: the absence of objections from the employee and the observance by the employer of the one-month period for issuing a recovery order. If this period is missed, the amounts can be withheld only in court.

When implementing the provisions of part 4 of Art. 137 of the Labor Code of the Russian Federation, one important nuance should be taken into account. An incorrect application of the legislation regulating the procedure for remuneration, the terms of a collective agreement or an employment contract cannot be recognized as a counting error. Accordingly, overpaid funds in such cases are not subject to recovery. Withholding these amounts can be challenged in court.

1. Deductions from an employee's wages may be made in cases established by law, i.e. regardless of the will of the employer, and by his decision. Article 137 of the Labor Code of the Russian Federation defines the grounds for deductions made by the decision of the employer to pay off the employee's debt, and contains an exhaustive list of such grounds.

It must be emphasized that the employer has the right, but is not obliged to make deductions. This directly follows from Part 2 of Article 137 of the Labor Code of the Russian Federation.

2. The grounds and rules for deductions from wages of an employee are established by the Labor Code in accordance with ILO Convention No. 95. Article 8 of the Convention provides that deductions from wages are allowed to be made under the conditions and within the limits prescribed by national legislation or determined in collective agreements or in decisions arbitration courts. Workers should be advised of the conditions and limits of such deductions.

3. It is necessary to distinguish from deductions the recovery of the amount of damage caused by the employee (see comments to Article 248).

4. Along with deductions made at the direction of the employer and aimed at paying off the employee's debt, there are deductions made on the basis of federal laws. They are aimed at fulfilling the duties of an employee to the state or other persons. The current legislation establishes the possibility of withholding from wages taxes on personal income, administrative fines, fines as a criminal punishment, certain amounts (part of wages) when serving a sentence in the form of correctional labor, sums of money by a court decision (a writ of execution).

5. Article 137 of the Labor Code of the Russian Federation establishes the procedure and conditions for deductions. Firstly, the employer must comply with the deadline - a month from the date of expiration of the deadline set for the return of the advance, repayment of debt, etc. Secondly, the absence of disagreements with the employee about the grounds and amounts of deductions.

6. A particular difficulty in practice is the question of determining the presence (absence) of a counting error.

A counting error should be understood as an error in arithmetic operations when calculating the amounts payable, as well as other technical errors (typos, misprints, etc.). Incorrect application of the relevant legal norms is not a counting error.

7. By decision of the employer, amounts overpaid to the employee as guarantee payments in case of non-fulfillment of labor standards or downtime may be withheld. This is possible in the event that the body for the consideration of an individual labor dispute establishes the employee's guilt in failure to comply with labor standards or in idle time (see also comments to Articles 155, 157).

8. Amounts paid to the employee as payment for vacation may be withheld in case of his dismissal before the end of the working year for which the vacation was granted. The exceptions are the grounds for dismissal at the initiative of the employer, not related to the employee’s guilty behavior (clauses 1, 2, 4, part 1, article 81), and dismissal due to the employee’s refusal to transfer to another job, which he needs in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (clause 8, part 1, article 77).

"Legislation and Economics", 2009, N 5
ARTICLE 137 OF THE LABOR CODE OF THE RUSSIAN FEDERATION: PRACTICAL ASPECT
Practice has shown that among labor conflicts, which occupy a significant place in a number of reasons that give rise to a labor dispute between an employer and an employee, their disagreements in assessing the legality of the former withholding money from the latter's wages stand out. The emergence of such disagreements is largely facilitated by the ambiguous presentation of the norms contained in Art. 137 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation or the Code). It also does not contribute to mutual understanding and the deduction by the employer from the salary (hereinafter referred to as the salary) of the employee of the amounts, the amount of which is determined in the local act of the employer, created in order to maintain labor discipline. The totality of these problems has become the reason for the study of the norms of labor legislation governing this type of labor relations.
Types and methods of recovery and retention
To conduct a hold, i.e. failure to accrue any part of the earnings payable to the employee and transfer it to the proper person, it is necessary for the employer or other authorized body to make a decision to recover from the employee the amounts specified by law. In this regard, the penalties are divided into those made according to the law, indisputable, including according to the executive inscription, court decisions, administrative according to the instructions of state bodies and officials who are given the discretionary right to impose fines, write off or otherwise collect from the money available to citizens. funds of the amount, as well as the debt formed behind them in the amount established by law.
And if in practice most types of penalties do not cause the employer's representatives to explain to them the rules for their implementation, then their type, as indisputable (including the executive inscription), requires a detailed clarification of its legal essence. So, the collection in an indisputable manner in jurisprudence means the forced collection of sums of money that formed the debt of the obligated person (debtor) to the recoverer, by deducting them from the funds belonging to the debtor (including an individual), in order to compensate for this debt without applying to the authority resolving property disputes. Recovery in an indisputable manner is allowed only in cases expressly provided for by law, and only by officials and bodies named in it. Recovery under an executive inscription is one of the special cases of indisputable collection from the debtor of a certain amount of money due to the recoverer; it is carried out on the basis of a notary's order made on a genuine debt document. Thus, collection in an indisputable manner is one of the types of collections made by the compulsory method, and only in cases where the debtor does not repay the debt that has arisen for him voluntarily. In turn, withholding is a way of implementing the recovery and ensuring the fulfillment of the obligations of the debtor.
All possible deductions from an employee's salary can be divided into the following three groups of his obligations established by federal law to:
- by the state (for example, payment of taxes, fines, etc. - Art. 138 of the Labor Code of the Russian Federation);
- citizens, public organizations and legal entities (for example, under executive documents for the recovery of alimony, compensation for harm, as well as for repaying loans, transferring contributions, etc. - Article 138 of the Labor Code of the Russian Federation);
- the organization in which he works (Article 137 of the Labor Code of the Russian Federation).
Let's analyze the last group of holds. Its characteristic feature is the following: a representative of the employer, who has the right, on the basis of local entitlement acts, to decide on the retention of those specified in Art. 137 of the Labor Code of the Russian Federation of the types of his debts to the employer, issues an order (order) to collect a certain amount of debt from the employee’s salary and himself implements this decision by not accruing these amounts for payment.
General and private positions of the legislator on withholding amounts
from the employee's salary
So, the rules on the possibility of withholding from the employee’s salary any funds due to him in a voluntary, administrative, indisputable or judicial manner are placed by the legislator in Art. Art. 137 and 138 of the Labor Code of the Russian Federation. However, the content of the latter requires a separate study. As indicated in Part 1 of Art. 137, deductions from the employee's salary are made only in cases provided for by the Code and other federal laws. Thus, deductions from an employee's salary based on other acts located in the legal hierarchy below the federal law (for example, local ones) are illegal. If the employee disagrees with the penalties on the basis of local acts, the amounts withheld by the employer are subject to return either voluntarily or involuntarily. It is possible to force the employer to return (additionally charge) the amounts withheld (recovered) by him illegally by decision of the bodies considering individual labor disputes (hereinafter - ORITS; Art. 382 of the Labor Code of the Russian Federation), as well as by the relevant instructions of the prosecutor (part 4 of Art. 353 of the Labor Code of the Russian Federation) or a labor inspector (Articles 356 and 357 of the Labor Code of the Russian Federation).
In part 2 of Art. 137, the cases of the employee's debt to the employer, allowing it to be deducted from his salary, include the following:
- reimbursement of the unworked advance payment issued to the employee on account of the salary;
- repayment of an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
- refund of amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the ORITS recognizes the employee’s guilt in failure to comply with labor standards (part 3 of article 155 of the Labor Code of the Russian Federation) or downtime (part 3 of article 157 of the Labor Code of the Russian Federation );
- refund of amounts for unworked days of vacation, which is made upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77 or paragraph 1, 2 or 4, part 1 of Art. 81, paragraphs 1, 2, 5, 6 and 7, part 1 of Art. 83 of the Labor Code of the Russian Federation.
Only for this group of deductions from the employee's salary, the legislator provided (as an exception to the general rules on mandatory collections related to other groups of deductions) a special procedure for collecting his debts to the employer from the employee, endowing the latter with discretionary powers. The discretion of the employer is expressed in the fact that he, at his own discretion, collects the advance amounts received by the employee, specified in par. 2 and 3 h. 2 tbsp. 137 of the Labor Code of the Russian Federation. In the same way, he may withhold the amount specified in par. 4 hours 2 tbsp. 137, as overpaid to an employee as a result of a counting error.
The discretionary right of the employer extends also to other cases specified in par. 4 hours 2 tbsp. 137, but with significant legal caveats. Withholding on them is possible if the fault of the employee in non-compliance with labor standards or simple is recognized not by the prosecutor or labor inspector, but by the ORITS. This means that the already made remuneration of the employee’s labor in case of his idle time and non-fulfillment of labor standards by him did not take into account this legally significant circumstance and amounted to a larger amount than indicated in Part 3 of Art. 155 and part 3 of Art. 157 of the Labor Code of the Russian Federation. In an indisputable manner and even without observing the conditions specified in Part 3 of Art. 137, the legislator allowed the employer to deduct overpaid amounts from the employee's salary in the case specified in par. 5 hours 2 tbsp. 137.
So, in part 2 of Art. 137 gives a list of cases in which the employer has the right (but not the obligation) to make deductions made to pay off the employee's monetary obligations to the organization where he works. Moreover, as indicated in this part of this article, the deduction is made precisely from the employee’s salary in order to cover his debt to this organization that arose as a result of his both lawful and unlawful actions.
We note right away: for all those listed in Part 2 of Art. In 137 cases, the Labor Code of the Russian Federation does not impose on the employer the obligation to notify him of their recovery in advance of deducting any amounts from the employee's salary. The performance of this noble deed seems to be self-evident, but the theoretical presumption of the employer's good faith is rarely confirmed in practice. Consequently, the employee will become aware of the withholding of these amounts, as a rule, on the day of receipt of the salary (in a smaller amount than he planned). Another option is possible if there is not enough amount (subject to the rules of Article 138) for the employer to fully recover the overpaid amounts at a time, when the employee finds out that he has a debt to the employer, but already from the document he received, for example, a payslip issued on the day salary payments (part 1 of article 136).
In the above situations, the employee must either, having received a smaller amount accrued to him by the employer than he expected, immediately apply to him in writing with a request for its recalculation, or refuse to receive it altogether, thus expressing his disagreement with the withholding made. In this situation, the employer needs to draw up an act of refusal, which will be evidence of his attempt to fulfill his obligation to pay wages. Otherwise, the employee will have the opportunity to hold the employer liable through the ORITS for incorrectly calculated and not paid wages in a timely manner. But this can happen only if in favor of the employee there is a solution to the dispute about the right to amounts not additionally accrued to him by the employer (Articles 236 and 237 of the Labor Code of the Russian Federation).
In part 3 of Art. 137 the legislator established: in the cases provided for in par. 2, 3 and 4, paragraph 2 of this article, the employer has the right to decide on the deduction from the employee's salary no later than one month from the date of expiration of the period established for the return of the advance, repayment of debts or incorrectly calculated payments, and provided that the employee does not dispute the grounds and holding sizes. Therefore, these rules do not apply to par. 5 part 2 of this article, talking about the return of amounts for unworked vacation days. It is for this case that the employer is not required to meet the deadlines or find out from the employee his intentions to challenge the grounds and the amount of deduction for the advance vacation, since the employer does not have time for this due to the connection of this type of deduction with the moment of dismissal of the employee. Nevertheless, it should be taken into account that the same circumstances may arise for any other deductions, but the legislator ignores the possibility of their real occurrence for some reason.
Regarding other grounds for withholding the employee's debt, listed in Part 2 of Art. 137, the following should be noted. Neither in the Labor Code of the Russian Federation, nor in other regulations related to these types of deductions (except for a business trip report), is there a deadline for either literally voluntary or mandatory, but at will, the employee's return of the amounts of debt formed behind him. Thus, the legislator deprived the employer of the opportunity to act in the manner prescribed by Part 3 of Art. 137, because he does not have a reference point from which it is necessary to calculate the monthly period permissible for the collection of a debt in an indisputable manner or in another compulsory way. Moreover, applied in part 3 of Art. 137 The meaning of the term "indisputable penalty" is clearly ambiguous. In the absence of part 3 of this article of the prescribed, and therefore only implied obligation of the employer to find out from the employee whether he will dispute with him or in the ORITS the basis and amount of the planned deduction, it is completely inappropriate to talk about the indisputable order of these penalties, and this is in a situation where the worker practically cannot know about them in advance.
Let us assume that the employee is notified of it in advance of the deduction and agrees with the basis and amount of his debt, but, as it turned out, prefers to pay it off himself when he has a material opportunity. Since such a case is not taken into account by the legislator and the deadline for voluntary or mandatory self-repayment of the debt is not established, the employee can repay his debt for an immense time. Therefore, the rule of Part 3 of Art. 137 is valid if the deadline for voluntary or mandatory self-return is set, i.e. this rule applies only to the case of advance travel. This means that if the employer’s order to withhold the debt is not made within a month from the expiration date set for the return of the advance (for example, on a failed business trip), the employer loses the right to recover the relevant amounts in an indisputable manner based on his decision. If, in violation of the procedure (exceeding the deadline and (or) the employee’s disagreement with the deduction), the employer withholds the amount of the debt, then this recovery will be unlawful, which will oblige the employer to return the withheld amount voluntarily, and in case of refusal - by force.
Based on the foregoing, the recovery of sums of money, when the employee disputes the basis and amount of the deduction for the repayment of almost any type of advance, as well as when the employer misses a monthly period, compensation for these amounts can be made only by a court decision, which, as will be shown below, is also problematic (Art. 386 and 387 and part 2 of article 392 of the Labor Code of the Russian Federation). Nevertheless, the employer should not forget that there is still a list of documents for which debt collection is carried out in an indisputable manner on the basis of executive inscriptions of bodies performing notarial acts, approved by the Resolution of the Council of Ministers of the RSFSR of March 11, 1976 N 171 (as amended. dated December 30, 2000), which indicates the following types of debts of an employee arising from labor relations:
- an unworked advance payment issued on account of a salary, a lump-sum allowance, travel expenses and daily allowances issued to him when concluding, in the order of an organized recruitment, an employment contract for work in industry, construction or transport due to non-arrival at the place of work;
- the amount of money for the bedding given to him and not returned to him upon dismissal from work;
- the amount of money for uniforms left behind by the dismissed employees of associations, institutions, enterprises, organizations in which the wearing of uniforms has been introduced;
- the amount of money assigned to financially responsible employees of associations, state, cooperative and public organizations, enterprises and institutions, in the event of the dismissal of these employees and the issuance of obligations by them to repay the specified debt.
The employer needs to know that when deducting, on the basis of the notary’s writ of execution, the amount of debt due to him from the debtor, he must comply with the rules on the term of circulation, types of documents provided to the notary and other organizational requirements, as well as take into account the procedure for enforcement, defined in sec. VII Civil Procedure Code of the Russian Federation.
In part 4 of Art. 137, the legislator determined that wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases:
- counting error (paragraph 4, part 2, article 137);
- if the ORITS found the employee's fault in failure to comply with labor standards (part 3 of article 155) or idle time (part 3 of article 157) (paragraph 4 of part 2 of article 137);
- if the salary was overpaid to the employee in connection with his illegal actions established by the court.
Among those listed in Part 4 of Art. 137 exceptional cases when it is possible to recover overpaid wages, there are no most cases from part 2 of the same article, except for the cases contained in its par. 4. In part 4 of Art. 137 there are no such types of debt repayment as:
- reimbursement of the unworked advance payment issued to the employee on account of the salary;
- repayment of an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
- refund of amounts for unworked days of vacation, made upon dismissal of an employee before the end of the working year, on account of which he has already received annual paid leave.
Therefore, already in part 4 of Art. 137 the legislator either changed his mind about making deductions from these three types of excessively made payments, or allowed rule-making negligence, creating an intra-article conflict of norms and a logical inconsistency between part 2 and part 4 of this article.
In the absence of a special (labor-legal) definition of the concepts of "withholding" and "recovery" in the Labor Code of the Russian Federation, they are used either in their general legal meaning, or in the general literary one, which is given to them in explanatory dictionaries of the Russian language. With any of these approaches, the words "withhold" and "recover" in the context of Art. 137 of the Labor Code of the Russian Federation have a relationship with each other as a cause (recover) and a consequence (withhold). Thus, based on the content of Part 4 of Art. 137, the cases listed in par. 2, 3 and 5 hours 2 tbsp. 137 are not formally exclusive and cannot be deducted from amounts overpaid to an employee. Apparently, in part 4 of Art. 137, the legislator means penalties, decisions on which were not made by the employer, but by other competent authorities, as indicated by the duplication in this part of the article of the cases included in par. 4 hours 2 tbsp. 137, and this further aggravates the possibility of an unambiguous understanding of this article as a whole and requires clarification of the procedure for its application at the level of the Supreme Court of the Russian Federation.
If you interpret part 4 of Art. 137, then the penalties listed in par. 2, 3 and 5 parts 2 are referred to cases where deduction is possible if the salary was overpaid to the employee in connection with his illegal actions established by the court. This exceptional case itself involuntarily attracts attention, supplementing the cases listed in part 2 of this article with an unlimited number of cases of overpaid wages to the employee, if the court establishes that this part of it was received by the employee as a result of his illegal actions or inactions.
Concretization of the analysis of norms,
set out in part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the cases listed in par. 2, 3 and 5 hours 2 tbsp. 137 allows at least two conclusions to be drawn.
Firstly, these cases are literally not related to the illegal actions of the employee, as a result of which the salary was overpaid to him, since the employer makes the payments indicated in them, guided by the relevant provisions of the acts regulating labor relations. However, this conclusion is admissible under one condition: unless the employee misled the employer about the rationality of their payment, based on any of his own selfish goals (for example, in connection with the planned prompt dismissal after receiving them). Then a rhetorical question arises, to which a priori there is a negative answer: can the employee’s refusal to voluntarily return the overpaid amounts be attributed to the illegal actions of the employee, if for most types of deductions the legislator has not even established a period for the mandatory reimbursement of these amounts by the employee?
Secondly, these cases are connected not only with the deduction of overpaid amounts from the salary. They also apply to other payments if debts need to be collected at the final settlement with the employee. For example, the case referred to in par. 5 hours 2 tbsp. 137 is clearly not related only to wages, since here we are talking about all payments that form the amount determined in the final settlement with the resigning employee (part 5 of article 80, part 4 of article 84.1 and article 140 of the Labor Code of the Russian Federation).
In connection with such errors in the rule-making activities of the legislator, we will consider each type of withholding described in Part 2 of Art. 137, separately, we will try to reveal their true meaning and the legal consequences generated by them for the parties to the employment contract. At the same time, in order to simplify a rather critical analysis, we will not take into account the defectiveness of Part 4 of Art. 137 in relation to its part 2, attributing it to "calculative errors of the legislator", and we will consider only the intra-systemic legal connection of Art. 137, limited to its three parts. At the same time, we take into account that the legislator, with the possibility of withholding any of those listed in Part 2 of Art. 137 types of debt formed by the employee to the employer, connects this lawful action with the latter's compliance with the following state guarantees and the procedural rules established in the Labor Code of the Russian Federation:
- the system of basic state guarantees for the remuneration of workers includes a restriction on the list of grounds and amounts of deductions from wages by order of the employer, as well as the amount of taxation of income from wages (Article 130);
- when paying wages, the employer is obliged to notify each employee in writing about its constituent parts due to him for the relevant period, the amount and grounds for the deductions made, as well as the total amount of money payable (part 1 of article 136);
- limiting the amount of deductions from wages (Article 138).
In none of the noteworthy comments to the Labor Code of the Russian Federation, the problems discussed below with the application of Art. 137 did not receive a clear explanation. In addition, in the available specialized literature and in the existing materials on the generalization of judicial practice, there are no unambiguous answers to the questions that law enforcement officers have regarding the timing and sources of deductions, their amounts and other organizational procedures accompanying them. This state of affairs has developed, apparently, because the application of the norms of both the Code and other by-laws related to this topic raises more questions than these sources of legal regulation contain answers to them.
Analysis of the second paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
The legal mechanism for the implementation in practice of the legislator's instructions on the employer's ability to withhold the employee's debts from his salary on the basis of par. 2 hours 2 tbsp. 137 looks like this. Deductions from the employee's salary to pay off his debt to the employer may be made to compensate for the unworked advance paid to the employee on account of the salary. Legally significant circumstances for the application of this type of withholding (let's call it "salary advance") will be the following:
- the fact that the employee received a salary advance, which, on the basis of Part 6 of Art. 136 was paid to him on account of his potentially due salary in full for work in a particular month, as a result of which it turned out that the final salary was accrued less than the amount of the salary advance already received;
- the absence of legal significance of the reason for the non-payment by the employee of the full amount of the salary, from which the employer established the size of the salary advance (for example, the employee’s illness, involving him in the performance of public or state duties), when he retained average earnings, or his dismissal from work, etc.
Let me remind you that there is no regulatory requirement for a percentage or other ratio between the size of the salary advance and the amount of the monthly wage established for the employee in the Labor Code of the Russian Federation. As for the Decree of the Council of Ministers of the USSR of May 23, 1957 N 566 "On the procedure for paying wages to workers for the first half of the month", acting in accordance with Art. 423 of the Labor Code of the Russian Federation insofar as it does not contradict the Code, it can hardly be considered applicable to all employees for a number of formal legal grounds indicating its incomplete compliance with the Labor Code of the Russian Federation;
- the period for the employer to make a decision on the forced deduction of the difference between the paid salary advance and the accrued salary cannot exceed one month from the date of expiration of the period established for the voluntary return of the salary advance by the employee. The question immediately arises: in which regulatory legal act is the period for the voluntary return by the employee of the salary advance paid in excess on account of the salary established? The answer to this question is no! Consequently, there is no legal mechanism for withholding this advance, available for its application at the level of the employer, and not the court, which can sometimes afford to apply general legal methods to overcome legal gaps in order to make a decision on withholding this type of employee's debt;
- contestation by the employee of the basis and size of the deduction. This rule requires additional regulation up to the clarification of the legal mechanism for its implementation, at least in by-laws. As already noted, an employee can find out about this type of deduction only on the day the salary is paid and provided that the employer will comply with the rules set forth in parts 1 and 2 of Art. 136. Let us assume that during the next payment of wages, its advance exceeded the amount that the employer, under the employment contract, should have charged the employee, and there are no other payments due to the employee. In this case, the employee’s debt will be indicated on the payslip, and until the day the next salary advance is paid to him or the final payment of the remaining part of the salary at the end of the next month, the employee still has the opportunity to challenge both the amount and the basis of this debt. If the debt was withheld from other payments that do not form the composition of the salary, then what is the possibility of challenging the size and basis of the deduction of the allegedly overpaid amount from the employer in advance in a real situation? Thus, the defective norms of labor legislation with this type of deduction without alternative lead to the employee's application for the protection of his right to remuneration to the ORITS or administrative bodies.
Analysis of the third paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the norms that determine the rules for deductions from wages on the basis of par. 3 hours 2 tbsp. 137, allows us to say that almost all the problems specific to retention under sec. 2 hours 2 of this article are also inherent in this case. So, this paragraph allows deductions from the employee’s salary to pay off his debt to the employer, formed due to an unspent and not returned in a timely manner advance payment issued in connection with a business trip or transfer to another job in another area, as well as in other cases. Such cases can be any so-called issuance of money against a report on account of a salary associated with the acquisition, for example, of household equipment for a community work day or stationery, or the receipt of funds for payment in a specialized workshop for refilling cartridges for office equipment, etc.
In contrast to the unresolved problems with the deadline for the previously considered case (paragraph 2, part 2, article 137), here the term for the voluntary and mandatory return of the travel advance by the employee is established in the regulatory legal act and is equal to three working days, calculated from the moment of his return from a business trip to place of permanent employment.
At the same time, the employee is formally obliged to return from a business trip not to his place of residence or registration, but to the place where the organization that sent him on a business trip is located. The requirement to fix the date of arrival at the location of the organization that sent the employee on the vehicle ticket excludes the possibility of traveling on a business trip in one's own transport and walking. Thus, the fixation in the ticket of a different place of arrival of the vehicle than the location of the organization is not recognized as the day of arrival from a business trip, which affects the moment from which the time period for the timely return to the employer of the unspent part of the travel advance received by the employee will be calculated. In accordance with paragraph 26 of the Regulation on the peculiarities of sending employees on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749, the employee, upon returning from a business trip, must submit to the employer within three days not only an advance report on the amounts spent in connection with the business trip , but also to make a final settlement with him on the cash advance issued to him before leaving on a business trip for travel expenses.
Consequently, only three days after the employee returns to work, the employer has the right to withhold the difference between the amount of the issued travel advance and documents confirming the expenditure of funds only partially or not specified in Art. 168 of the Labor Code of the Russian Federation for special purposes. But this is possible provided that, within three working days from the moment of returning from a business trip to work, the employee not only did not report to the employer on the fully spent amounts of the travel advance, but also did not voluntarily return the unspent part of it. Then, within a month, the employer must find out from the employee whether it is indisputable for him to have the basis and amount of the deduction that the employer intends to make from his next salary. If the employee does not give written confirmation of his consent with both the basis and the amount of deduction of this supposedly his debt, the employer will have to implement his claims for the amount he has determined through the court, which, as it turned out, did not reach its logical conclusion in labor relations.
From the established practice for this type of withholding, it follows that if the advance report on a business trip has been approved, it is possible to recover from the employee any amounts associated with it only by a court decision and provided that after the approval of this report, abuses of the right and ( or) falsification of documents by the employee.
However, speaking of other cases contained in sec. 3 hours 2 tbsp. 137, where an unlimited number of reasons are indicated with which the legislator connects the issuance of an advance by the employer to an employee, in particular, one who is transferred to another job in another locality, it should be noted that there is no legitimate possibility to determine the moment of the advance not returned in a timely manner. Consequently, there is no legal possibility to withhold, within a month, from the employee’s salary the amounts not spent by him to pay off his debt to the employer, formed due to this type of advance not voluntarily returned. By the way, Art. 169 of the Code does not oblige the employee to voluntarily return such an advance payment, nor does it oblige him to establish a return period in a contractual manner. In addition, it is not docked with Art. 137, since in it the movement of an employee to work in another locality is not connected with his performance there only of another, and not of any work. In addition, the frequent use of the words “other work” in the Labor Code of the Russian Federation in various contexts requires their separate explanation for specific norms of the Code (the word “other” in its main meaning has the meaning “other than it is, not the same”). In connection with this clarification, moving to work in another locality formally excludes the possibility for an employee to perform work in a new locality that is similar to what he previously performed, which literally limits the cases of issuing this type of advance payment.
It is also subject to a negative assessment that the legislator does not indicate the specific reasons for the employee to move to work in another area, which are associated with advance payments, since these reasons are heterogeneous. Thus, the move may be associated with the transfer of an employee to work in another locality together with the employer (Article 72.1 of the Labor Code of the Russian Federation), with the dismissal of the employee on appropriate grounds and the choice of a vacancy in other localities, if this is provided for by the collective agreement, agreements, labor contract ( Articles 74, 76 and many other articles of the Code). In addition, it can be a move in the order of the so-called organized recruitment (Article 324 of the Labor Code of the Russian Federation), etc.
Analysis of the fourth paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Paragraph 4 h. 2 art. 137 allows deductions from the employee’s salary to pay off his debts to the employer and return the amounts overpaid to the employee due to accounting errors, as well as the amounts overpaid to the employee, if the ORITS recognizes the employee’s guilt in non-compliance with labor standards (part 3 of article 155) or simple (part 3 of article 157). Analysis of the content of the norms that collectively determine the rules for deductions from wages on the basis of par. 4, allows us to say: almost all the problems characteristic of withholding on the basis of Part 2 of Art. 137 are also present in this case.
In the studied relevant acts of the period specified in Part 3 of Art. 137, no, and the employee can repay these debts at a time not limited by law, unless the employer convinces him to determine such a period in a special written agreement. Thus, once again we can state: the employer does not have a legal opportunity to withhold from the employee’s salary the amount for the repayment of his debt, which was formed due to amounts overpaid to him as a result of both accounting errors of an accountant or a computer operator, and not detected by the employer in a timely manner the fault of the employee in failure to comply with labor standards and (or) the occurrence of downtime.
Attention is drawn to the legal depravity of withholding for a counting error actually committed by the employer. After all, the reason for this type of deduction is the fault of the employer's representatives, and for some reason the employee must pay for it. This rule ignores such a basic principle of law as justice: an employee could spend a certain amount without knowing that he received it excessively. Consequently, he really cannot return exactly those banknotes that were excessively issued to him, he will return only his other money, which constitutes his legitimate earnings. In such cases, it would be fair to put this type of overpaid amounts on a par with overpaid payments due to incorrect application of labor legislation or other regulatory legal acts containing labor law norms. An example of such an error may be an overcharged amount due to the incorrect application of the Bonus Regulations by the accounting department. However, in this case, according to part 4 of Art. 137 responsibility in the form of compensation for damage to the organization is borne by the guilty employee, attributable to the administration of the employer.
There are also ambiguities in the withholding (return) of amounts overpaid to an employee, if the ORITS recognizes his guilt in failure to comply with labor standards (part 3 of article 155) or downtime (part 3 of article 157). In part 3 of Art. 155, it is determined that in case of non-fulfillment of labor standards, non-fulfillment of labor (official) duties due to the fault of the employee, payment of the normalized part of the salary is made in accordance with the amount of work performed. In turn, in accordance with Part 3 of Art. 157 downtime due to the fault of the employee is not paid. Moreover, the employee is obliged to inform his immediate supervisor, another representative of the employer about the start of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue to perform his labor function (part 4 of article 157). If the employee did not report his downtime, then, being, for example, a pieceworker or a lump-sum employee, he will not receive compensation for the lost time, therefore, it is not in his interests to remain silent about the downtime. This means that silence about downtime is beneficial only to an employee who is on a salary or a time rate. However, even in this case, if his work is related to quantitative, and not only qualitative indicators, its volume per day (shift) will not be equal to the volume during a normal working day (shift), even in the absence of a normalized task, which should not be left without evaluation from side of the employer's administration.
Thus, only from the moment the employer's representatives fix both the non-compliance with labor standards and the start of the employee's downtime, these documented facts can be recognized as grounds for not accruing the normalized part of the salary. Then a clarification procedure will be required, due to whose negligence the fault of specific persons in the occurrence of these events was not established from the moment they occurred until the moment the employee was paid in full. Moreover, there is no definition of the concept of "normalized part of the salary" in the Labor Code of the Russian Federation, as well as in other existing labor acts, which immediately excludes the possibility of unambiguously understanding and applying this rule. For example, in the absence of an indication in Art. 155 about the need in such cases for an employee to have a standardized task, it is impossible to talk about non-fulfillment of labor standards, in particular, norms of output or time, and even more so about non-fulfillment of the norm of labor duties by an employee who is on a salary (Articles 160 and 163). Therefore, Part 3 of Art. 155, containing unclear provisions, is a potential source of disagreement between the employee and the employer.
So, when withholding debt on the basis of par. 4 hours 2 tbsp. 137 there are many questions of a practical nature, related both to the determination of the fault of the employee in the payment of excessively accrued amounts to him, and with the actions of the employer in order to return them. The legislator makes the return of overpaid amounts dependent on the decision of the ORITS, i.e. from the recognition of the employee's guilt in the occurrence of these events either by the commission on labor disputes (hereinafter referred to as the CCC) or by the court. But the KTS is not authorized by the legislator to examine the employer's appeals (Article 385 of the Labor Code of the Russian Federation), and the court considers the employer's statements arising from labor relations only on the issue of compensation by the employee for damage caused to property that is in the employer's area of ​​responsibility (Article 238, 248, 391 and 392 of the Labor Code of the Russian Federation).
Therefore, in order to restore justice, the employee himself (!) must apply to the ORITS with a statement on the recognition of his guilt or in committing illegal acts. Therefore, either the debts of the employee must be recognized as one of the types of property of the employer in Ch. 39 of the Labor Code of the Russian Federation (as it was earlier in the Labor Code), or this type of deduction, which does not have a logically completed legal mechanism for collecting funds overpaid to an employee, is not suitable for real application in practice. Then the question arises, which remains unanswered in the Labor Code of the Russian Federation: how can an employer legally protect its interests and rights in cases related to Art. 137? To get out of this situation, the employer, when applying to the court, will have to rely not on the norms of the Labor Code of the Russian Federation, but on general legal approaches to cases of protecting violated rights. As is known, the Supreme and Constitutional Courts of the Russian Federation, by interpreting Art. Art. 8, 34 and 46 of the Constitution of the Russian Federation came to the conclusion: in accordance with the principle of equal legal protection, not only citizens, but also organizations have the right to protect their interests in court without any restrictions.
Analysis of the fifth paragraph of part 2 of Art. 137 of the Labor Code of the Russian Federation
Analysis of the content of the norms that collectively determine the rules for withholding from wages on the basis of par. 5 hours 2 tbsp. 137, allows us to say: this case is an exception to the rule contained in part 3 of the article in question. But first, let us recall the mechanism for regulating the procedure for retaining an employee's debt, set out in par. 5 hours 2. So, deductions from the employee's salary to pay off his debt to the employer can be made upon dismissal of the employee before the end of the working year, on account of which he has already received annual paid leave, for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part 1 of Art. 77, paragraphs 1, 2 and 4, part 1 of Art. 81, as well as paragraphs 1, 2, 5, 6 and 7, part 1 of Art. 83 of the Labor Code of the Russian Federation.
From the foregoing, it follows that when an employee is dismissed for all other (not excluded from the general rule) grounds provided for in the Labor Code of the Russian Federation or other federal laws, the employer has the right to withhold the amount of debt from the funds due to the employee, but proportional to the days not worked by him all holidays he received in advance. In para. 5 hours 2 tbsp. 137, the legislator did not specify the types of holidays used by the employee in advance, but generalized them with the concept of "annual paid leave". According to Art. 120 of the Code, the duration of the annual paid leave is determined by summing up the main and all additional paid holidays due to the employee, calculated in calendar days, and is not limited to a maximum limit.
Thus, the leave granted to the employee before dismissal may look, for example, as a set of holidays for different working years, which the employee managed to use only partially in connection with his recall from vacation, and deductions, as you know, contrary to common sense, are not allowed (Art. 125 of the Labor Code of the Russian Federation). This can also be an extended vacation due to joining the next, but advance vacation, the transferred vacations that the employee has not used over the past years (Article 124). Any combinations significantly complicate the possibility of returning to the employer paid vacation funds that have not been worked out by the employee, taking into account the instructions of Art. 137; only deduction from salary is permissible, the composition of which is defined in Part 1 of Art. 129. But, as you know, the composition of the payment "on account" can be much wider than the composition of the salary, which requires additional clarification by the legislator of the possibilities of applying to other payments to withhold the employee's debt upon dismissal.
Nevertheless, the employer, making the final settlement upon dismissal of the employee, has the right to withhold amounts in proportion to any unworked, but fully paid vacation. For these purposes, the calculation of the time worked by a specific employee in a working year with a given employer is carried out on the basis of the provisions of Art. 121, which defines the rules for calculating the length of service, giving the right to annual paid basic and additional holidays.
In contrast to the rules that apply to par. 2 - 4 h. 2 tbsp. 137, withholding in the case referred to in par. 5 part 2 of this article (refund of amounts for unworked days of vacation), is not limited either by the terms or by compliance with the procedure for challenging the basis and amount of this type of deduction. In addition, this type of deduction can be made at a time or with installment payments during the period of dismissal of the employee, regardless of what part of the salary remains after all other penalties from him. At the same time, the amount of the recovery and deduction itself is limited only by an amount proportional to the payment of advance vacation days not worked out due to dismissal. However, as a rule, this amount is not enough to pay off the employee's debt in full. Moreover, in the amount "for settlement" received upon dismissal immediately after the used, especially the total vacation, the salary component can be close to zero, and it is impossible to formally make deductions from other payments due to the employee at that moment.
So, the Labor Code of the Russian Federation does not provide for the provision of annual paid leave in proportion to the time worked by the employee. And even, moreover, it allows the provision of such leave in advance, including for the first year of work before and after six months (parts 2 and 3 of article 122). The duration of such leave is established by law and other acts both for the main and for all additional holidays due to the employee with payment as specified in Art. 139 size. Therefore, in any case, based on the rules of Art. Art. 114 - 116 and 120, the employee is granted annual paid leave of a fixed duration and with the preservation of average earnings, which, on the basis of Part 9 of Art. 136 is also paid in advance, namely no later than three days before its start.
Based on the foregoing, this norm cannot be considered justified: after all, in this case, the employee has not yet "earned" his vacation. Then why should it be paid in full? This outdated norm of legislation gives rise to the problems discussed in the analyzed paragraph. 5 hours 2 tbsp. 137. Based on the analysis of the relevant regulatory legal acts on the competences of the CCC, the court, the prosecutor's office and the labor inspectorate, the following conclusion can be drawn. An employee can apply for the restoration of his right to timely and full payment of a fair salary to any specified body, but the employer does not have such an opportunity to withhold debts from an employee based on the norms of the Labor Code of the Russian Federation.
Summing up, we note the following. The Labor Code of the Russian Federation and other normative legal acts accompanying it in regulating the procedure for withholding amounts of debt from the employee's salary do not contain exhaustive answers to the complex practical issues discussed above. At the same time, based on the analysis, it can be seen that an unambiguous rule should be introduced into the Code, according to which the employer has the right to bring a lawsuit against the employee in court to recover from him the amounts of debt arising from the grounds of Art. 137, if the possibility of its repayment from the salary in an indisputable manner, provided for by the current labor legislation, is excluded. Therefore, in order to correct the situation that has arisen, it must be recognized that the debts not repaid by the employee upon dismissal are an independent type of damage caused to the employer, since the non-repayment of debts actually reduces the size of his property. To do this, at least make appropriate additions and changes to Part 2 of Art. 238, part 1 of Art. 243 of the Labor Code of the Russian Federation.
V.V. Arkhipov
Docent
departments of labor law
and social security rights
Faculty of Law
Academy of Labor and Social Relations
Signed for print
18.05.2009

Art. 137 of the Labor Code of the Russian Federation contains cases when the company has the right to issue to the specialist not the entire amount of funds due to him, but minus some part that the company will keep for itself. When is this possible? In what cases can a company have no reason to give an incomplete amount of earnings to a specialist? The article is devoted to the answers to these and other questions.

Article 137 of the Labor Code of the Russian Federation

Art. 137 of the Labor Code of the Russian Federation provides that, under certain circumstances, the company has the right to withhold from the income paid to the employee, a certain part. This occurs mainly when, by the nature of the legal relationship, the employee did not have rights to this retained part.

In particular, a firm may make such a withdrawal if:

• the specialist received an advance on salary, but in fact did not work it out;
• having gone on a business trip or transferred to work in another area, the employee received an advance from the company, did not spend it in full, but did not return the rest on time;
• due to an accountant's mistake, the specialist received a higher salary than he was supposed to;
• the employee received a salary, but it was established that due to his fault some labor standards were not met or there was a downtime at work;

NOTE! In the above circumstances, it is important that the company collects the surplus no later than 1 month from the date of its transfer to the specialist, and that the specialist himself agrees with the amount of the surplus and is not opposed to returning it to the company.

• the employee took leave in advance, but left the company before the required period.

Besides, article 137 of the Labor Code The Russian Federation establishes that if a company incorrectly interpreted some provisions of the Labor Code of the Russian Federation or other regulatory acts, as a result of which it paid a specialist more income than was necessary, then in general it is impossible to recover the surplus.

However, if at the same time an error was made in the calculations of the accounting department, or if it turned out that the employee was guilty of some kind of misconduct that entailed the payment of a surplus, the company has the right to withhold the overpayment from his earnings.

How can a company keep an unearned advance?

As mentioned above, the advance payment received by the specialist, but not actually worked out, must be returned to the company. If the employee agrees to this, the company can withhold the missing amount from payments in favor of the specialist within a month. In this case, it is important to confirm the fact of the consent of the employee. This can be done with its free-form application. After that, the company issues an order to withhold the amount of the surplus, also in free form.

What happens if the employee has not fully returned the "travel" advance?

As follows from paragraph 6.3 of the instruction of the Bank of Russia “On the procedure for conducting cash transactions ...” dated March 11, 2014 No. 3210-U, the specialist no later than 3 days after returning from a business trip or after the expiration of the period for which the company issued him accountable funds , must submit an advance report confirming the intended use of funds. If this does not happen, the company has the right to withhold the unreturned advance from the employee's salary ( Art. 137 TK RF).

For information on how to fill out such a report correctly, see the article. .

But for this, as in the previous case, you need to obtain the written consent of a specialist (in the form of an application) with such a deduction, and then issue an order.

The same is done in a situation where a specialist received funds under the report due to transfer to work in another area.

What if a specialist is mistakenly given more money than it should be?

The answer to this question depends on what kind of error caused it. If this is an arithmetic inaccuracy, the company may return the overpayment amount in the manner similar to that described above (Rostrud letter dated 01.10.2012 No. 1286-6-1).

If an error of a different nature occurred (for example, the company incorrectly applied the norms of the Labor Code of the Russian Federation), the company will not be able to return the surplus ( Article 137 of the Labor Code RF).

Is a deduction made if a downtime occurs?

Is it possible to withhold funds from the salary of a specialist in case of downtime at the enterprise, depends on who is to blame for the downtime:

• If an employee, the company can withdraw the overpayment, but again with the written consent of the specialist.
• If the company is to blame, then the ability to withhold the surplus of Art. 137 of the Labor Code of the Russian Federation does not establish.

What if the employee took a vacation, but, having not worked for him, decided to quit?

In this case, the company has the right to withhold the amount of the overpayment from payments to such a specialist upon dismissal, even without his written consent. However, if for some reason this is not possible (for example, there is not enough money to keep), the employee can only reimburse the surplus voluntarily. It is pointless to apply to the court for recovery (determination of the Supreme Court of the Russian Federation of March 14, 2014 No. 19-KG13-18).

For more information about deduction upon dismissal for a leave taken in advance, see the article .