Deductions from wages can be made for three reasons. The first is a writ of execution. Secondly, this decision was made by the administration. Well, the last reason is the desire of the employee himself.

Writs of execution cannot be ignored. According to them, from the employee’s salary you must deduct:

• periodic payments (for example, alimony);
• collection of property debt (if the employee does not have property or it is not enough to repay the debt);
• compensation for damage to health.

Most often, the organization of deductions from wages is carried out in relation to alimony. They can be set at a fixed amount. For example, if an employee’s earnings are constantly changing. Or as a percentage of salary (¼, ⅓ or ½ of income - depending on the number of children).

In addition to such mandatory deductions, the company's management has the right to make deductions from salaries in relation to:

• unearned advance payment issued against wages;
• unspent and not returned in a timely manner amounts issued on account in connection with transfer to work in another area, etc.;
• wages and other amounts overpaid to an employee due to a counting error or upon proof of his guilt in idle time or failure to comply with labor standards;
• amounts for unworked vacation days when an employee is dismissed before the end of the working year for which he is entitled to vacation;
• amounts of temporary disability and maternity benefits, which were paid to the employee in a larger amount due to a calculation error (for example, when calculating earnings for the billing period, an arithmetic error was made, letter of Rostrud dated October 1, 2012 No. 1286-6-1) or unlawful actions of the employee himself (for example, he hid information affecting the amount of benefits).

I have a question

We used the wrong algorithm for calculating benefits. Is this a counting error?

No, such an error cannot be called a counting or arithmetic error. Therefore, it will not be possible to withhold overpayment from the employee. Now, if you made a mistake, say, when multiplying the amount of daily earnings by the number of calendar days in the period of incapacity or vacation, it would be a different matter. Such a miscalculation would be precisely arithmetic.

You can also deduct compensation from an employee’s earnings. material damage, which he caused to the organization. The basis here will be Articles 238 and 240 of the Labor Code of the Russian Federation. Well, if the employee himself asks to withhold some amount from his salary, then let him write a statement. Here's a sample:

I will separately provide loans to employees. Here it is more convenient to stipulate in the contract itself that you will withhold a certain part from the salary.

Withholding Amount Limits

Deductions from wages, which are carried out at the initiative of the organization, are limited to 20 percent (Article 138 of the Labor Code of the Russian Federation). They can be withheld with each income payment. However, if you simultaneously withhold money from an employee’s income both at the initiative of the administration and according to executive documents, then their total amount of deductions should not exceed 50 percent of the take-home salary. And the maximum amount of deductions can reach 70 percent of earnings, if, according to executive documents, the employee must pay:

• compensation for harm caused to health;
• compensation for damage to persons who have lost a breadwinner or caused by a crime;
• child support for minor children. Bailiffs determine the amount of alimony based on the following proportions. One child receives ¼ of the income, two children receive 1/3. For three or more children, half of the earnings will be withheld (clause 1 of Article 81 of the RF IC).

But at the same time, keep in mind an important detail: your share of deductions in any case cannot be more than 20 percent. At the same time, the requirements of executive documents are mandatory. They need to be satisfied first.

Maximum deduction amount

This means that an employee’s debt to the organization can be withheld from his income only after all obligations under writs of execution have been repaid. And if, for example, your employee pays child support for three children in the amount of half of his earnings, then you will no longer be able to collect anything additional from him. Representatives of Rostrud spoke about this in a letter dated May 30, 2012 No. PG/3890-6-1.

As for deductions from wages at the initiative of the employee, there are no restrictions. This conclusion is confirmed by the letter of Rostrud dated September 16, 2012 No. PR/7156-6-1. An employee can dispose of his earnings as he wishes if he writes an application to the company’s accounting department. In this case, the provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, you can hold it as long as you want and for anything.

Recovery of material damage

We will separately focus on the procedure for collecting and deducting material damage from wages. Exactly how much you can deduct from an employee depends on what kind of liability is provided - full or limited. With limited financial liability the employee is obliged to compensate for damage in an amount not exceeding average salary(Article 241 of the Labor Code of the Russian Federation).

However, the specific procedure for calculating it for such cases has not been determined. So you need to use general rules. Clause 4 of the Regulations on the specifics of the procedure for calculating the average wages(approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922) establishes the following procedure. The calculation must be made based on the employee’s accrued wages and the time actually worked by him for the 12 previous calendar months. In this case, preceding the month in which the employee caused the damage.

The total salary for 12 months must be divided by the number of days (hours) worked and multiplied by the number of working days on the employee’s schedule in the month in which he caused the damage. In this case, the average earnings will depend on the month of calculation. However, you cannot simply divide your annual earnings by 12. Use this formula:

Example

At the beginning of August 2014, due to the fault of an employee of the organization A.S. Nelyubov, the server failed. The amount of material damage was estimated at 25,200 rubles. He admitted his guilt. An agreement on full financial responsibility has not been concluded with the employee, which means that no more than the average monthly salary can be recovered from him. The accountant thought so.

The employee works a regular five-day work week. The billing period is from August 1, 2013 to July 31, 2014, the employee worked 218 working days. Wages for these days amounted to 433,546.15 rubles. In August 2014 – 21 working days.

This means that the average monthly earnings will be:

RUB 433,546.15 : 218 days x 21 days = 41,763.62 rub.

Thus, the organization can deduct from the salary the entire amount of damage caused by it - 25,200 rubles.

In case of full financial liability, the employee is obliged to compensate the entire amount of damage (Article 242 of the Labor Code of the Russian Federation). At the same time, Article 137 of the Labor Code of the Russian Federation does not impose any restrictions on the total amount of penalties.

Full financial liability of an employee occurs only in two cases. Firstly, when a shortage of valuables entrusted to him is discovered, if he caused damage due to an administrative violation, etc. In this case, it does not matter whether an agreement on full financial liability has been concluded with the employee or not, he must compensate for the damage in full.

Secondly, in situations where an agreement on full financial responsibility has been concluded with an employee. Such an agreement can be concluded with employees whose positions are listed in Appendix 1 to Resolution No. 85 of the Ministry of Labor of Russia dated December 31, 2002. In particular, a similar contract is drawn up with cashiers, cashier-controllers, as well as with storekeepers, warehouse managers, and supply specialists and forwarders.

By the way, drivers are not on this list. Therefore, it is impossible to conclude agreements with them on full financial liability. At the same time, if the driver is found guilty of an accident, that is, administrative offense, the company will have the right to recover the entire amount of damage from him.

In some cases, financial liability may be provided for in the employment contract with the employee. This is allowed in relation to deputy heads of the organization and the chief accountant (Article 243 of the Labor Code of the Russian Federation).

But the head of the organization (unlike his deputies) bears full financial responsibility, regardless of whether this is stated in his employment contract or not (Article 277 of the Labor Code of the Russian Federation).

I have a question

Is it possible to recover lost profits from an employee?

No. Deductions from wages are allowed only in respect of the amount of direct damage. That is, those losses that can be accurately calculated. It will not be possible to recover the benefit lost due to the employee’s actions (Article 238 of the Labor Code of the Russian Federation).

How to calculate the amount of withholding

First, deduct personal income tax from the employee’s salary. And from the resulting amount, calculate the amount of deductions from your salary. The fact is that the maximum amount of deductions must be calculated based on the money that the employee receives in hand.

At the same time, you have the right to withhold money, including from the advance payment of wages for the first half of the month. It's even better to do it this way. The fact is that when calculating deductions only once at the end of the month, you may be faced with the fact that the employee’s salary minus personal income tax and the advance payment already paid may not be enough to recover the entire amount.

In addition, the second part of the payment will be significantly less than the first. After all, let us remind you that there is no need to withhold personal income tax from the salary advance.

Example

Let's continue the previous example. Official salary Nelyubova is 36,000 rubles. He is not entitled to standard tax deductions.

The personal income tax amount was 4,680 rubles. (RUB 36,000 x 13%). The maximum amount that can be withheld from an employee per month is:

(RUB 36,000 – RUB 4,680) x 20% = RUB 6,264

Since this amount is less than the damage, the accountant withheld exactly 6,264 rubles from the employee’s salary for August. The remaining 18,736 rubles. (25,000 – 6264) will be deducted from the employee’s salary in the following months.

Example

In August 2014, the organization received a writ of execution to collect 16,000 rubles from employee Karpina A.S. in repayment of an outstanding loan. In addition, at the beginning of August, the employee had an unreturned and unconfirmed advance payment issued for travel expenses, in the amount of 3000 rubles.

However, if an employee compensates for damage caused to the company, the situation is somewhat different. The Labor Code deals with deductions from wages. And this is nothing more than remuneration for work (Article 129 of the Labor Code of the Russian Federation). This concept also includes various additional payments and allowances plus incentive payments, that is, bonuses. It turns out that you can withhold money from all other transfers only upon a written application from the employee. In this case, in any case, there is no need to take into account the money that the employee receives on a repayable basis. For example, in debt under a loan agreement.

How to keep money if an employee quits

Let's start with company-initiated deductions. And in this case, you also have the right to withhold no more than 20 percent from the employee’s last salary. If the last payment is not enough, the procedure depends on the specific situation.

If we are talking about, say, an outstanding loan, then just agree now with former employee how he will repay you the remaining amount of debt. The same applies to material damage or unreturned accountable amounts. The employee refuses to repay the debt? This means you will have to go to court.

But if an employee took part of his vacation in advance, it will not be possible to recover the under-withheld amounts from him even through the court. The fact is that judges in such cases are on the side of the employees.

Now about writs of execution. If the employee in respect of whom such a document was received resigns, simply send the writ of execution back to the bailiffs. At the same time, attach to it cover letter in any form, in which indicate how much you withheld from the employee.

By signing an employment contract, an employee can observe the clause on financial responsibility in the area of ​​work entrusted to him. This means that, in accordance with the labor code, the employer protects itself from possible losses associated with the incorrect performance of their duties by subordinates. In the article we will talk about deducting shortfalls from wages and give examples of postings.

Causing material damage by an employee of the organization

If a shortage or material damage is detected, the employer has the right to recover from the salary the amount of damage caused. Retention must be carried out within the legal framework:

• A special inspection must be organized to determine the amount of damage incurred;
• The inspection is carried out by a commission that draws up reports on the causes and amount of damage and determines the culprit;
• The employee who is guilty of causing damage is obliged to familiarize himself with the acts and formalize the in writing the reasons why the damage to the organization was caused;
• The employee is responsible for compensation for damages.

In accordance with labor legislation, the employee bears full financial responsibility in the following situations:

• The shortage of cash or goods occurred during the performance of the duties of a specific employee.
• The employee is financially responsible for certain goods or funds within the framework of the agreement signed with the organization employment contract. Read also the article: → “”.
• The employee intentionally caused damage, or it occurred as a result of drug or alcohol intoxication or as a result of malicious intent (established in court).
• The employee caused damage to the material assets of the organization not in working hours;
• The damage occurred due to inaction or incomplete performance of their duties by a specific employee;

Accounting entries: deduction of shortfalls from wages

After carrying out all the necessary procedures, the accountant is obliged to deduct the relevant accounts and withdraw the required amount from the employee’s salary.

Amount of salary deduction

Salary deductions can be classified as:

• Mandatory: personal income tax, withholding according to executive documents.
• Retention at the initiative of the employer.

According to labor laws, the maximum possible amount of deduction from wages is 20% of the salary, unless otherwise provided. Only if there is a justified reason can the employer count on a larger amount not exceeding the average monthly salary. Although in some cases a court decision may order compensation of an amount several times greater than the employee’s salary, this is the exception rather than the rule and depends on each specific case within the framework of existing legislation.

By agreement with the employer, the employee has the right to compensate for damage by transferring equivalent material assets.

Deduction from wages of shortages during inventory

Carrying out an inventory is the most effective way identify what was lost, broken or stolen and identify those responsible who will bear financial responsibility for the damage caused. But before making accusations, it is necessary to find out whether the shortage is a natural rate of loss, which is determined by law. If, nevertheless, a clear violation and deficiency is identified and documented by the relevant acts, then it is worth determining the real amount of damage that the employee is obliged to compensate.

Shortage at the cash register, deduction from the cashier's salary

Finding an insufficient amount of money in the cash register is also a damage. If such a precedent occurs, it is necessary to conduct an audit of the cash register. The audit procedure must be fixed by internal legal documents. As when conducting an inventory (an audit is one of the forms of inventory), it is necessary to make sure that the amount of the shortage exceeds the natural rate of loss determined by law.

Having carried out the necessary procedure to record the fact of the shortage and familiarize the perpetrators with the documents on the audit, the organization has every right to recover the amount of the shortage from the salary, if it does not exceed the average monthly salary. The collection procedure is endorsed by the General Director in a special order, which must be issued within a month after all acts are drawn up, otherwise the shortage may be withheld by order of the executive authority.

Deduction from wages upon dismissal of an employee

There are situations when a shortage is identified, all documents are completed, and the employee expresses a desire to resign from the organization. In this situation, the employer has the right:

• Offer the employee to stay until his debt to the organization is fully worked off, but these are rather not legal measures, but rather personal ones between the employee and the employer;
• The employer has the right to withhold the amount of damage not exceeding wages or, with the voluntary consent of the subordinate, to withhold the entire amount of damage from the payments due upon dismissal;
• Collect damages through executive bodies authorities.

The dismissal of an employee cannot be a reason for evading compensation for damage to the organization if the entire procedure was carried out in accordance with the established Russian legislation legal framework.

An example of calculating deduction from an employee's salary

An employee of a car rental company received a fine for illegal parking. company car, when using it outside of working hours. The fine was issued to the organization and amounted to 5,000.00 rubles. The average monthly salary of an employee is 27,000.00 rubles. Based on the fact of the damage incurred, the company drew up relevant acts, which the culprit was familiarized with.

1. At the beginning of the month, the employee was given an advance in the amount of 10,000.00 rubles (personal income tax is not charged), 20% can be withheld from this amount: 10,000.00 * 0.2 = 2,000.00 rubles
2. For the entire month, wages were accrued in the amount of 27,000.00 rubles, personal income tax is 3,510.00 rubles, we will calculate the amount of compensation.
3. (27,000.00 – 3,510.00 – 10,000.00)*0.2 = 2,698.00 rubles
4. Balance amount 5,000.00 – 2,000.00 – 2,698.00 =302, rubles

Common mistakes when deducting from wages

1. Violation of the established procedure provided for by labor legislation, in part established deadlines and drawing up relevant acts. If this happens, the employee will have the right to go to court to appeal the employer’s actions;
2. Withholding too large amounts that are not provided for by labor legislation;
3. Deduction from wages for a reason not related to legal violations established by the labor code. In some organizations, employers use an internal system of fines for sitting in social networks during working hours, smoking, appearance etc.

Common questions and answers

Question No. 1. In a situation where an employee completely refuses compensation for damage, is it possible to deduct wages without his written consent?

If the employee is a financially responsible person in accordance with labor legislation and the fact of the shortage was identified and recorded during all the necessary legal procedures, then there is no obstacle to withholding the damage from wages on a monthly basis until the damage to the organization is fully covered.

Question No. 2. The order to collect the shortfall was drawn up several months after the fact of the discovery of the shortfall was recorded, whether the withholding of wages is legal.

Deduction from wages will be legal if, before the order was issued, an explanatory statement was requested from the financially responsible person about the fact of the damage incurred and, subsequently, the employee was familiarized with the order, in which the reason for the deduction is legal and complies with federal law Russian Federation.

Question No. 3. The General Director issued an internal order on fines for errors in documents, is this legal?

In itself, such an order cannot be legal, because it does not comply with labor legislation. In a situation where errors in documents lead to material damage to the company, for example, errors in a tax return can lead to a fine issued to the organization, even in this case a special commission must be organized to identify the perpetrators and obtain explanatory notes from them. And only then is an order issued to recover damages from these specific individuals in a specific case.

Question No. 4. Is it possible to pay off a debt to a company without deducting wages?

Maybe. By agreement with the general director, an employee can voluntarily pay for damages through the cash register, as well as provide equivalent property, carry out the necessary repairs, etc. In this case, ways to solve the current situation can be discussed personally between interested parties.

The employee made a mistake when performing work, which led to additional expenses (material). The employee wrote an explanatory note and admitted guilt. Is it possible to deduct from the salary the amount of damage caused to the employer?

According to Part 1 of Art. 130 of the Labor Code of the Russian Federation, deductions from an employee’s salary can be made by order of the employer. But the law establishes restrictions on deductions from wages: in accordance with Part 1 of Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary are made only in those cases provided for by the Labor Code of the Russian Federation and others federal laws. The Labor Code of the Russian Federation allows deductions from the employee’s wages within the framework of financial liability to the employer (Part 1 of Article 248 of the Labor Code of the Russian Federation), but in compliance with a certain procedure.

So, in accordance with Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties (Part 2 of Article 238 of the Labor Code of the Russian Federation). According to Part 1 of Art. 246 of the Labor Code of the Russian Federation, 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 prevailing in the area on the day the damage was caused, but not lower than the value of the property according to data accounting taking into account the degree of wear and tear of this property.

At the same time, by virtue of Part 1 of Art. 233 of the Labor Code of the Russian Federation, the financial 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 culpability illegal behavior(actions or inactions), unless otherwise provided by the Labor Code of the Russian Federation or other federal laws. Thus, financial liability occurs in the simultaneous presence of the following conditions: the presence of damage; unlawful behavior (actions or inaction) of the perpetrator; causal connection between the unlawful act and material damage; guilt in committing an unlawful act (inaction). The absence of at least one of these conditions excludes the possibility of bringing the employee to financial liability (see, for example, the letter Federal service on labor and employment dated October 19, 2006 N 1746-6-1). To establish these circumstances, Article 247 of the Labor Code of the Russian Federation provides for the employer’s obligation to conduct an inspection, including requesting a written explanation from the employee to establish the cause of the damage.

The direct procedure for collecting damages is established by Art. 248 Labor Code of the Russian Federation. In accordance with Part 1 of Art. 248 of the Labor Code of the Russian Federation, 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 can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. If the 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 caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court (Part 2 of Article 248 of the Labor Code of the Russian Federation). Failure to comply with this procedure by the employer in accordance with Part 3 of Art. 248 of the Labor Code of the Russian Federation gives the employee grounds to go to court to appeal the employer’s actions.

Thus, within the meaning of these norms, by order of the employer, the amount of damage caused from the guilty employee may be withheld from wages if the following conditions are simultaneously met:

1) the amount of damage does not exceed the employee’s average monthly earnings;

2) the order for recovery was issued no later than one month from the day when the employer finally established the amount of damage caused by the employee.

Let us note that compensation for damage within the limits of the average monthly salary is made by order of the employer, regardless of whether the employee agrees to compensate for the damage or not.

In addition, it must be borne in mind that in accordance with Part 1 of Art. 138 of the Labor Code of the Russian Federation, in the absence of other deductions, the employer has the right to withhold no more than 20% of the salary amount for each deduction from wages. Consequently, if the amount of damage within the average monthly earnings does not exceed 20% of the employee’s salary, the amount of damage can be withheld by the employer at a time. If the amount of damage caused does not exceed the employee’s monthly earnings, but is more than 20% of the employee’s salary, deduction is made from the employee’s salary for several months until the amount of damage is fully recovered. Accordingly, the amount of deductions for each such payment should not exceed 20% of the employee’s salary. At the same time, the Labor Code of the Russian Federation does not prohibit making deductions by order of the employer in a smaller amount than is established by Part 1 of Art. 137 Labor Code of the Russian Federation.

Unfortunately, no employer is insured against the possibility of property damage by an employee. Sometimes this is caused by the employee’s negligent attitude towards his professional duties. It is completely natural for the employer to want to compensate for the damage caused at the expense of the employee. But can you always count on this? How to properly recover material damage from an employee? What mistakes are most often made by employers in this case?

When does responsibility come?

The onset of financial liability for causing damage to the employer’s property is provided for by the Labor Code of the Russian Federation (Article 283). Financial liability can be characterized by two characteristics:

• one of its parties must act individual who is working for the employer at the time of property damage;
• The amount of liability depends on the extent of the damage and the nature of the violation that led to damage to the property.

Financial liability occurs provided that:

• direct damage;
• illegal behavior, negligence, improper performance of their professional responsibilities;
• the fault of the employee who caused the damage.

If damage to the employer's property is caused by force majeure, defense, or extreme necessity, financial liability does not arise. Also, the employee is not responsible for property when the employer does not provide necessary conditions for its safety.

What is financial responsibility?

The essence of financial liability lies in the employee’s obligation to compensate for the material loss caused by him. In this case, only damaged property is implied; lost profits are not taken into account.

The definition of material damage includes an actual decrease in the quantity or deterioration in the quality of the employer’s property. For example, lack of money, damaged equipment, raw materials, materials, costs of paying a fine in relation to the employer, who was appointed due to the fault of the employee.

What is the employee's responsibility?

The main types of financial liability of employees are presented in the table:

A contract of full liability - a guarantee or an attempt by the employer to insure its property?

It is common practice for employers to conclude an agreement on full financial responsibility with each person hired. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But this is not always the case. Such an agreement will not become a “magic wand” for the employer in any case.

For example, the employer tried to obtain compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court refused this, despite the existence of an agreement on full financial liability between the employee and the organization. The reason was that in official duties This employee was not directly responsible for ensuring the safety of the company's property.

How to recover damages caused?

The procedure for recovering material damage caused to an employer consists of several stages:

• conducting an inventory of funds;
• creation of a commission to conduct an official investigation and establish the reasons that caused the damage;
• obtaining from the employee a written explanation of the reasons for the loss. If he refuses, then the refusal should be recorded in the act;
• calculating the amount of damage caused market valuation on the day of its occurrence. At the same time, the value of lost or damaged property should not be less than that recorded in accounting records;
• differentiation of the degree of guilt and responsibility between employees if the loss was caused by the fault of several persons.

The employer has the opportunity to withhold losses from the perpetrator not only through the court, but also in pre-trial proceedings.

Without recourse to the courts, a shortfall not exceeding the employee's average monthly earnings is withheld. An order for this must be created no later than a month after the incident occurred and losses were calculated. If an employee objects to the employer’s actions, he can go to court.

The parties may agree to pay off the damage in installments. In this case, you should draw up a payment schedule and indicate specific terms. If an employee has undertaken to compensate for the damage caused, but quits without doing so, the employer can go to court. Also, only in court can the issue of collecting damages from an employee in an amount exceeding his average earnings be resolved if he refuses to voluntarily do so.

Reflection of damage on accounts: postings

The value of the property established during the inventory must be shown in the debit of account 94. Read also the article: → “”. This amount is recorded in the accounting accounts as follows:

The shortfall cannot be withheld from an employee if the employer does not have documentary evidence of his guilt.

The most common mistakes employers make when recovering damages

When trying to obtain compensation for material damage from an employee, an employer often makes the following mistakes:

• an attempt to obtain full compensation for the damage caused. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the manager and chief accountant enterprises;
• concluding an agreement with each employee on full financial liability in the hope of being able to recover the entire loss. Even if such an agreement was concluded, but there were no legal grounds for it (the employee’s position is not on a special list, or his activities are not related to material assets), then it will be declared invalid by the court;
• an attempt to recover from the employee not only the damage caused, but also the lost profit. The employee is obliged to compensate only for direct losses;
• The employer’s mistake is to withhold the amount of the administrative penalty imposed on him due to the fault of the employee. For example, the seller did not ensure that expired food products were removed from the shelves in a timely manner. As a result of the inspection, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After this, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to compensate for damages in this amount, and the employer went to court. The court, taking into account all the circumstances, rejected the employer’s claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average salary of the employee.

Answers to pressing questions about the recovery of material damage from an employee

Question No. 1. Is it possible to pay off material damage in installments?

Yes, the possibility of repaying the damage caused to the employer in parts exists. This is permissible subject to the mutual consent of the parties to the employment contract. To do this, it is necessary to draw up a written commitment from the employee to repay the debt in installments and indicate a payment schedule. On this obligation, the head of the enterprise must put a resolution that he does not object. It is possible to arrange an installment plan with a separate order or order, which will indicate the payment schedule.

Question No. 2. Should an employer be required to withhold damages caused by an employee?

Recovery of material damage is not the responsibility of the employer. Rather, it is his right. The employer has the right to refuse this procedure if the circumstances specified in Article 240 of the Labor Code of the Russian Federation occur. These include the difficult financial situation of the employee, a small amount of damage caused, and dependent minor children. The employer may not recover material damage initially, or refuse to recover it at the stage of legal proceedings. In this case, you must issue a waiver of claims in writing.

In most cases, the employer can recover only that part of the damage caused that does not exceed the average salary of the employee. The list of cases when full financial liability occurs is established by law and the employer cannot expand it in any way. Regulatory acts There is no specific procedure for calculating average earnings for the purpose of compensating for losses caused by an employee. When determining it, you can use general calculation rules based on the duration of the billing period of 12 months.

Question No. 4. How much, in accordance with the law, can the employer withhold from the culprit for the damage caused?

If the case does not fall under the legally defined option of full repayment of the cost of the loss, then the most that the employer can count on is the average salary of the employee. You cannot deduct more than a fifth of your earnings per month. If the employer believes that he has the right to demand repayment of the damage caused in full, but the employee does not want to do this, then such a disagreement must be resolved in court.

Question No. 5. Which assessment takes into account the amount of damage caused by the employee?

Answer. Without fail, the cost of the loss caused by the employee must be calculated based on market prices. But if the assessment of the missing funds in the accounting of the enterprise exceeds the market value, then the higher value is taken as the basis for determining the amount of compensation.

Due to the fault of the employee, with whom an agreement on full financial liability was concluded, the organization suffered damage. At present, the employment relationship with the specified employee has been terminated, but the final payment upon dismissal has not been made to him. Is it possible, after dismissing an employee, to recover the amount of damage caused from the wages he did not receive upon dismissal?

In accordance with Art. 242 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation), the full financial responsibility of the employee consists of his obligation to compensate for direct actual damage caused to the employer in full. Financial liability in the full amount of damage caused can be assigned to the employee only in cases provided for by the Labor Code of the Russian Federation (Labor Code of the Russian Federation) or other federal laws.
According to Art. 244 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation), written agreements on full individual financial responsibility, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly service or use monetary and commodity assets or other property. Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.

In pursuance of the Decree of the Government of the Russian Federation of November 14, 2002 N 823, the Ministry of Labor of the Russian Federation of December 31, 2002 N 85 approved the List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual financial liability for shortages of entrusted property (hereinafter - Scroll). The specified List is exhaustive and is not subject to broad interpretation (letter of Rostrud dated October 19, 2006 N 1746-6-1).

Thus, if an employee is not included in the category of persons with whom it is possible to conclude agreements on full financial liability in accordance with the List, then, regardless of the fact of concluding a corresponding agreement with such an employee, he cannot be assigned full financial responsibility for the damage caused to the employer.

The procedure for recovery of damages by the employer from the guilty employee is established by Art. 248 Labor Code of the Russian Federation (Labor Code of the Russian Federation).
Part one of this article provides that the 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 possibility of such recovery does not depend on whether the employee agrees to compensate for the damage or not. Recovery of damages caused to the employer, the amount of which exceeds the employee’s average monthly earnings, can also be carried out out of court, but subject to the employee’s consent to voluntarily compensate for the damage.

In this case, the corresponding order of the employer must be made no later than one month from the date of the employer’s final determination of the amount of damage caused by the employee. If this deadline is missed, collection can only be carried out by the court (parts one and two of Article 248 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation)).
Therefore, if in the situation under consideration, an order to recover damages caused by an employee was made by the employer within one month from the date of final determination of the amount of damage, then recovery can be made by deducting from the amounts not paid to the employee upon dismissal in the following cases:
- the amount of damage does not exceed the employee’s average monthly earnings;
- the amount of damage exceeds the employee’s average monthly earnings, but the employer has documentary evidence of the employee’s consent to voluntarily compensate for the damage caused.

In other cases, collection can be carried out exclusively in court.

It should be taken into account that recovery of damage caused to the employer must be carried out taking into account the relevant restrictions established by Art. 138 Labor Code of the Russian Federation (Labor Code of the Russian Federation). According to this article, the total amount of all deductions for each payment of wages cannot exceed 20 percent, and in cases provided for by federal laws - 50 percent of wages due to the employee.

Please note that the deadline for submitting claims for damages to the court in accordance with Art. 392 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation) is limited and cannot exceed one year from the date of discovery of the damage caused.

Additionally, we consider it necessary to point out the fact that upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment (Article 140 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation)). Violation by the employer of this obligation may be the basis for bringing him to administrative liability under Art. 5.27 Code of Administrative Offenses (see, in particular, resolutions of the Federal Antimonopoly Service of the West Siberian District dated July 26, 2007 N F04-5021/2007 (36614-A81-29), FAS Moscow District dated November 27, 2006 N KA-A40/11424 -06).

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