New salary law: new terms and penalties. What is the penalty for non-payment of wages

In July 2016, amendments were made to a number of legislative acts regulating issues labor relations. In particular, new terms of wages and penalties for delaying its payment were established. It should be noted that the commented amendments, including the increase in penalties for delayed wages, come into force on October 3, 2016 (Article 4 of the Law of July 3, 2016 N 272-FZ).

New salary dates

In accordance with the new edition of the Labor Code of the Russian Federation, effective from October 3, the employer is given 15 calendar days to pay wages from the end of the period for which it was accrued (for example, a month). And as before, it is indicated that the specific date for the payment of wages should be established by the internal labor regulations, the collective or labor agreement. That is, the payment date determined by the employer must fall on one of these 15 days (clause 1, article 2 of the Law of July 3, 2016 N 272-FZ, article 136 of the Labor Code of the Russian Federation as amended, effective from October 3, 2016).

New calculation of compensation for late salary payments

The Labor Code of the Russian Federation provides for the liability of the employer to employees for delays in the payment of wages. Anyone whose salary was delayed, the employer must pay compensation. And regardless of whether the delay was his fault. Until October 3, 2016, the amount of compensation is calculated based on 1/300 of the refinancing rate for each day of delay (Article 236 of the Labor Code of the Russian Federation).

But from October 3, 2016, the calculation procedure is changing: interest must be calculated based on 1/150 of the key rate of the Central Bank - essentially the same refinancing rate (clause 2, article 2 of Law No. 272-FZ of July 3, 2016, article 236 of the Labor Code of the Russian Federation as amended, effective from 03.10.2016). In other words, the legislators doubled the minimum amount of compensation.

But in addition to compensation for delayed wages under the Labor Code in 2016, the employer will also have to pay fines.

Late pay penalties since 2016

Another important amendment is the changed size of fines for delayed wages in 2016. That is, in addition to increased compensation to employees, the employer will also have to pay new fines for delaying wages to the budget.

The point is that the Code of Administrative Offenses now separately names such a type of violation as non-payment or incomplete payment of wages on time (clause 1, article 1 of the Law of July 3, 2016 N 272-FZ).

As you can see, reports that the penalty for delaying wages will soon increase are not fiction. And those employers who are regularly late with the payment of wages will have to face an even greater increase in penalties for late wages. Because for repeated violations, sanctions are set in a larger amount (

All employers want their employees to do their jobs with integrity. However, the leaders themselves are often in no hurry to comply with the obligations for the timely and full payment of employees. In this connection, the question of possible ways impact on an unscrupulous employer. The current legislation provides for serious liability for violation of the rules for calculating with employees: a fine for non-payment of wages, including interest for each day of delay, other penalties, up to restriction of freedom.

Article 142 of the Labor Code of the Russian Federation states the following: employees, regardless of place of employment, position and schedule, must receive a salary at least twice a month (once every 2 weeks). At the same time, the law does not name specific dates. They are set individually in each company and are approved by the relevant local regulatory documents of the enterprise:

• an employment contract;
• Collective agreement or other document;
• Rules and regulations of the internal regulations of the organization.

At the same time, the Labor Code of the Russian Federation specifies that if the date of receipt of wages falls on a non-working day (day off, holiday), then it must be paid in advance. Salary delay is not allowed. Even if other rules are prescribed in the TD with the employee or in another regulatory act of the organization, they do not comply with the norms of the Legislation and are not subject to execution.

From the very first day of delayed payment of wages, the employer can be held liable. And if employees do not receive wages for 16 days or more, then on the basis of paragraph 3 of Article 142 of the Labor Code of the Russian Federation, they can suspend the performance of their labor functions. In this case, it is necessary to notify the head of the organization in writing. Employees retain the right to receive wages even for the time when they did not actually work.

Measures of responsibility of the employer for the delay (non-payment) of wages

Employees have the right approved by the current legislation to receive their salary on time and in full. For violation of this right, the employer will be subject to material, administrative, and in some cases criminal liability.

Material liability

In accordance with Article 236 of the Labor Code of the Russian Federation, if for some reason the employer has not made timely payment of wages to employees, then in the future he is obliged to reimburse them not only the amount due, but also compensate for the resulting delay. The amount to be reimbursed must be at least 1/300 of the current refinancing rate set by the Central Bank of Russia, of the total amount of the resulting debt, starting from 1 day of delay and for all subsequent days.

How compensation is calculated

Employee salary - 25,000 rubles;

Salary delay period – 31 days;

Refinancing rate (since 01/01/2016 equals the key rate of the Central Bank of the Russian Federation) - 11% (1/300 = 0.0367%);

0.0367% of 25,000 = 9.175 rubles;

9.175 * 31 = 284.43 rubles.

Based on the calculations made, the employer is obliged to pay the employee wages, taking into account compensation in the amount of 25,284 rubles. 43 kop.

Material punishment (fine for late payment of wages) is applied to the employer, regardless of the reasons for the violation of the schedule for the payment of allowances and the formation of debt. Even 10 years ago (until the end of 2005) everything was completely different: in some cases, the employer was not obliged to pay interest. For example, if the employee himself did not want (refused) to receive his salary on time or there was a theft of funds. Currently, the Legislation does not provide for any concessions and imposes liability on the employer, even if the delay was not due to his fault.

It should be noted that in accordance with the Decree of the Plenum of the Supreme Court of Russia dated March 17, 2004, the affected employee retains the right to demand indexation of the amount of salary, taking into account the inflation rate at that moment.

There are cases when it is not possible to achieve repayment of debts and full payment of wages from the employer on a voluntary basis. There is only one way out - to send an appropriate lawsuit to the court demanding that the employer pay the money due, taking into account compensation.

Administrative responsibility

The Code of Administrative Offenses of the Russian Federation also provides for punishment for negligent employers for late pay (Article 5.21). So for officials and individual entrepreneurs, the fine for delaying wages ranges from 1 to 5 thousand rubles. For organizations, a more serious responsibility is provided - from 30 to 50 thousand rubles.

In the first such incident, the losses are not very tangible. But if the violation is committed twice or more often, then the penalties for managers / individual entrepreneurs will be 10 - 20 thousand rubles, for organizations 50 - 70 thousand rubles. For officials, the situation is further aggravated by the fact that they may be deprived of the opportunity to hold leadership positions for up to 3 years.

Applications for administrative responsibility of officials, individual entrepreneurs and organizations are considered by the territorial department of the Labor Inspectorate. In addition, penalties may be imposed by the court.

Criminal liability

A more serious liability (criminal) arises for the employer if for 3 months he pays employees only partially or does not pay them at all for 2 months. For this, he is waiting for a restriction of freedom, the maximum term of which is 5 years.

In cases where the employer (individual entrepreneur, official) does not pay salaries to employees for a long period, the Criminal Code of the Russian Federation provides for certain liability. More specifically, Art. 145.1 (part 1) of the Criminal Code of the Russian Federation, the following penalties are prescribed for managers (and this is not only about organizations, this also applies to structural divisions and branches) and individual entrepreneurs for partial non-payment of salaries within three months:

• a fine for delaying wages, the amount of which can be up to 120 thousand rubles. or be equal to the amount of the annual salary (sometimes, along with material punishment, an official is deprived of the opportunity to hold leadership positions, and an individual entrepreneur is prohibited from doing business for a period of 1 year);
• direction to perform forced labor or restriction of freedom for up to 1 year.

If employees have not received their earned money for 2 or more months, then the manager (IP) will suffer a more serious punishment:

• in this case, penalties for delayed wages vary from 100 to 500 thousand rubles. or equal to the sum of the salary for 36 months (the opportunity to hold a managerial position is also limited for a three-year period);
• the duration of forced labor or restriction of freedom is also increased to 3 years.

Even more serious measures are applied to the employer (official, individual entrepreneur) if the salary delay caused serious consequences. For example, a worker, left without a livelihood, committed suicide out of hopelessness. Or his close relative fell seriously ill. There may be other reasons as well. Then the employer will be punished more severely. But this is possible only if irrefutable evidence is presented that what happened was precisely in connection with the debt that had formed.

It is worth emphasizing that the employer is not held criminally liable in all cases. This is possible only when his selfish motives are proven. For example, if the money intended for the payment of salaries by an employee was appropriated or spent for other purposes (misappropriation).

Cases initiated under article 145.1 of the Criminal Code of the Russian Federation are under the jurisdiction of the Investigative Committee. This means that an application for bringing an individual entrepreneur, an official or another employer to criminal responsibility must be sent there. You can go a slightly different way and first apply to the territorial department of the Labor Inspectorate. Then the supervisory authority will independently conduct an audit of the case and, if the information is confirmed, send the materials to the Investigative Committee.

Another option is to file a complaint with the local police department. Police officers will accept the document and transfer it to the appropriate authority - the Investigative Committee.

I didn't get paid, what should I do?

In no case should you let the situation down on the brakes. Salary delay is a gross violation of the current legislation. Therefore, it is necessary to understand the situation and defend your rights from the very first day of the delay. But you should not immediately run with complaints to the Labor Inspectorate and other authorities. It is better to start the proceedings with a conversation with the manager and / or chief accountant. It is necessary to try to find out the reasons for what happened, to find out the planned terms of repayment of the debt. If the conversation with officials turned out to be fruitless, one should proceed to active actions.

Contacting the Labor Inspectorate

There is no unified form for applying to the Labor Inspectorate. The document is written randomly. But it must contain the following information:

• the full name of the employing organization or individual entrepreneur, the full name of the director and chief accountant of the company (another person whose duties include accruing salaries to employees);
• the name of the applicant's position, the duration of his work in the specified company;
• the amount of wages due, the intended method and dates of its issuance, the exact period of delay (in days).

In response to the application received, the employees of the Labor Inspectorate appoint an inspection of the violating company. If the information specified in the complaint is confirmed, then an appropriate order is sent to the head of the organization with a demand to immediately eliminate the violation of the rights of employees (pay wages) or a notice is sent about the non-compliance with the rules for calculating wages in law enforcement and IFNS.

Suspension of work

If the salary is not paid to the employee for 15 or more days, then he has every right not to perform his work until the debt is repaid. But before terminating the performance of labor duties, it is imperative to notify the manager (employer) of your intentions. This must be done not orally, but in writing. The notification may look like a statement addressed to the director (another official) with the obligatory reasoning for the decision to temporarily stop work.

Important: a statement containing intentions to suspend the performance of labor duties should be written in two copies, one of which should be transferred directly to the head (his secretary) against signature. If this condition is not feasible (for example, the manager does not agree to accept the application or does not want to sign for its receipt), then mail should be used. The application is sent to the name of the head by registered mail with an inventory and notification. Otherwise, in the future, it will be impossible for the employee to prove the legality of non-fulfillment of his duties.

It should be borne in mind that not all employees have the right to suspend the performance of duties in case of delay in wages. Article 142 of the Labor Code of the Russian Federation categorically prohibits this for the following categories:

• civil servants;
• employed citizens, on whose work the normal life of people directly depends (ambulance and resuscitation workers, specialists of heat, electricity, water supply organizations);
• employees of enterprises whose activities are associated with hazardous production.

As practice shows, in court the issues of delayed wages are considered for a long time. So for the time being judicial trial it is expedient to suspend labor activity. But before doing this, it is necessary to clarify a few important points that may be directly related to the current situation:

1. Has the payroll been done? In cases where there are no disputes about the amount of wages due and the presence of debt, the case is considered according to a simplified scenario and the employee can receive a writ of execution almost immediately.
2. Is not the incomplete payment of wages the result of the lawful deduction of part of it (for example, according to writ of execution, due to an overpaid advance on travel expenses, the return of overpaid amounts as a result of errors in calculations, upon dismissal due to payment of actually unworked days). No more than ½ of the total income is allowed to be withheld.

At the same time, the employee is not obliged to return the overpaid salary.

What to do if salary is not paid upon dismissal

Article 140 of the Labor Code of the Russian Federation obliges the employer to make final settlements with the employee directly on the day of his dismissal. This refers to the salary for the previous month (together with the debt, if any), the 13th salary (if such is provided for by the internal regulations of the company), compensation for each day of unused vacation.

If an employee leaves due to a reduction in the staff of the enterprise or its liquidation, then he is entitled to a severance pay equal to the amount of the average monthly salary. In addition, he is entitled to maintenance for the time necessary for the subsequent job search and employment - equal to the average monthly salary, paid 2 months after the day of dismissal. If within 2 weeks the employee was registered with the Employment Center, but within 2 months he did not find a job, then he will receive the corresponding allowance for 3 months.

In cases where, upon dismissal, the employer does not comply with its obligations to pay wages, the employee must do exactly the same as in case of delay (non-payment) of wages. But you should start not with a visit to the relevant authorities, but with a written request for the payment of the amounts due to the head. Otherwise, an unscrupulous employer may claim that the employee himself did not deign to come to receive the final payment. And then the latter runs the risk of losing part of the honestly earned money.

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Legislation establishes the requirement to timely pay for the work of employees. But not all organizations comply with it. Since October 3, 2016, rules have been in force, including an increase in the fine for non-payment of wages. Let's talk about fines in more detail.

Normative base

Requirements of the Labor Code of the Russian Federation

Labor legislation requires the employer to pay timely and regular wages. Accruals must go at least twice a month on time.

The exact dates are written in the contract, employment contract or internal documentation. General rule for the term of remuneration: no later than 15 days from the end of the period for which the accrual was made. The payment date determined by the employer must fall on these days. If it overlaps with weekends or holidays, funds must be transferred in advance.

Consequences for not following the rules

An employer who fails to pay wages on time is subject to financial liability. He will have to pay compensation for the damage caused. Its calculation is done according to the formula:

RFP- the amount of debt;
N– the current refinancing rate of the Central Bank of the Russian Federation (CB);
D- the number of days of delay.

Previously, to calculate the recoverable amount (for example, in 2015), interest was calculated based on 1/300 of the Central Bank's refinancing rate, which is equal to 10 percent (at the time of writing. - Note ed.). But from October 3, 2016, 1/150 of the rate should be taken into account. That is, the amount for non-payment or delay in wages has doubled.

If the company (IP) delays wages for a half month, on the 16th day, subordinates have the right to temporarily suspend the performance of labor obligations with a written notification of the decision.

Late pay penalty in 2018

For non-payment of wages, the employer is held liable under the sixth part of Art. 5.27 of the Code of Administrative Offenses. The employer is obliged to reimburse the employee not only for the delayed amount of earnings and compensate for the damage, but also to transfer an administrative fine to the treasury. The values ​​of the fines are as follows (see table):

Increased fines are provided for repeated delay in payment of labor:

EXAMPLE
The StroyMaster LLC company delayed the salary for 33 days (calendar) to several employees in the total amount of 137,400 rubles. The date of the actual transfer is November 7, 2018. For violation of labor law, the employer must calculate:

1. full salary: 137,400 rubles;
2. compensation payments: 137,400 × 10% × 1/150 × 33 = 3022.8 rubles.
3. issued by controllers a fine for delaying wages in the amount of 35,000 rubles.

When an employer is liable

It is not always possible to get off with a fine for non-payment of wages. When the leadership drags this out for a long time, pursuing selfish interests (which has irrefutable evidence), the perpetrators are brought to criminal responsibility. Their actions are qualified under Art. 145.1 of the Criminal Code of the Russian Federation. It all depends on the severity of the damage (see table).

A crime	Punishment
Part of the earnings is not paid for more than three months. It's about on amounts not exceeding half of the employee's full salary.	According to the first part of Art. 145.1 of the Criminal Code of the Russian Federation, an individual / director of an enterprise will be punished: fine up to 120,000 rubles. or an annual salary; deprivation of the right to practice their profession - up to 12 months; performance of forced labor up to two years; restriction of freedom up to 12 months.
Salary delay in full amount for more than two months.	Responsibility comes under the second part of Art. 145.1 of the Criminal Code of the Russian Federation: penalty for non-payment of wages: 100 - 500 thousand rubles. or deduction of an amount equal to income for 3 years; performance of forced labor up to 3 years + deprivation of the right to practice their profession up to 3 years (the latter - not always); imprisonment up to three years + deprivation of the right to practice one's profession up to 3 years (the latter is not always the case).

The most severe punishments are applied when the illegal actions of the leadership led to serious consequences: illness, suicide, etc. If guilt is fully proven in court, the consequences are as follows:

• payment of a fine for late payment of wages in the amount of 200 - 500 thousand rubles. or income for 1 - 3 years;
• detention for a period of 2 to 5 years + deprivation of the right to a profession for a period of up to 5 years (the latter is not always the case).

The Investigative Committee is investigating criminal cases under this article. To hold the employer liable, it is necessary to submit an appropriate application to the UK at the place of residence.

Terms of payment of wages

All employers are required to pay salaries at least every half month. From October 3, 2016, the salary must be paid no later than the 15th day after the end of the period for which it was accrued. That is, the deadline for the advance payment is the 30th of the current month, and for the salary - the 15th next month(part 6 of article 136 of the Labor Code of the Russian Federation). If you used to pay wages later, change the payment terms. To do this, conclude an additional agreement to the employment contract with the employee. You can also issue a notification of a change in wage conditions.

There is no concept of "half a month" in the current legislation. The norm from part 6 of article 136 of the Labor Code of the Russian Federation means that wages must be paid at least twice a month. Specify specific terms in the Rules of the labor schedule, collective or employment contract.

The first half of the month is always the period from the 1st to the 15th day of the current calendar month. The second half of the month is the period from the 16th to the last day of the calendar month. The main thing is to set specific terms for the payment of salaries. For example, according to the Labor Regulations, wages are issued on the 5th and 20th. Then fulfill the requirement of part 6 of article 136 of the Labor Code of the Russian Federation (letters of the Ministry of Labor of Russia dated April 18, 2017 No. 11-4 / OOG-718, dated September 23, 2016 No. 14-1 / OOG-8532).

If the established payment day coincided with a weekend or non-working holiday, issue a salary the day before (part 8 of article 136 of the Labor Code of the Russian Federation

Employer bankruptcy

Suppose that due to insufficient funds, the employer has a debt that has not been paid off for more than three months on payments due to employees (wages, severance pay, etc.). In this case, the head of the debtor organization or himself individual entrepreneur must apply to the arbitration court for bankruptcy. This is provided for by paragraph 1 of Article 9 of the Law of October 26, 2002 No. 127-FZ. Also, employees (including former ones) can apply to the arbitration court with an application to declare the employer bankrupt for debts on wages and other payments. This is stated in paragraph 1 of Article 7 of the Law of October 26, 2002 No. 127-FZ.

Employees have the right to hold a meeting. Deadline - no later than five working days before the date of the meeting of creditors. The organization and holding of the meeting of employees is entrusted to the arbitration manager. At the meeting, employees choose their representative, who will protect their interests in the bankruptcy process of the employer. The procedure for holding a meeting is described in detail in Article 12.1 of the Law of October 26, 2002 No. 127-FZ.

Claims for the payment of wage arrears and other remuneration to employees (including former ones) are included in the register of creditors' claims by the arbitration manager or the registrar upon the proposal of the arbitration manager. If such claims are disputed, they are included in the register on the basis of a judicial act establishing the composition and amount of these claims (clause 6, article 16 of the Law of October 26, 2002 No. 127-FZ).

Another innovation for employers in the new year is new fines for delayed wages in 2016. Government Russian Federation approved a bill to significantly increase the penalties for employers who delay the wages of their employees.

The Government of the Russian Federation proceeds from the fact that in a crisis, many employers can purposefully delay wages, and an increase in fines for delaying wages will significantly reduce and prevent repeated violations by the employer.

Increase in fines for delaying wages in 2016

At present, the fine for a primary violation related to obligations to pay wages for officials ranges from 1,000 to 5,000 rubles. New fines for such a violation will cost the employer from 10 to 20 thousand rubles.

In addition, the press service reported that for a repeated violation of the terms of payment of wages, the fine will be from 20 to 30 thousand rubles, compared with the old fines of 10-20 thousand. The minister also stressed that a sanction may be imposed on the employer in the form of disqualification for a period of 1 to 3 years.

For entrepreneurs and legal entities, only the upper maximum amount of the fine was changed, while the lower one was left unchanged. So for entrepreneurs, the upper limit of the fine has been increased by 10 thousand rubles, and in 2016 the fine for delayed wages is 10-30 thousand rubles. Legal entities for delayed wages in 2016 will have to pay from 50 to 100 thousand rubles, which is 30 thousand rubles higher compared to previous fines of 50-70 thousand rubles.

Fixed pay dates

In addition, the Ministry of Labor proposes to fix specific dates for the payment of wages. Salary must be paid no later than 10 days from the date of the reporting period for which it is accrued. Currently, wages must be paid to the employee at least every half a month. The introduction of such certainty will prevent the deliberate delay in the payment of salaries to employees by the employer and will facilitate the work of inspection bodies. Now the statute of limitations for delayed wages is only three months, and from 2016 it is expected to increase to a year.

These innovations are associated with a sharp increase in the number of debts. For example, according to Rosstat, only the official debt of employers to their employees as of December 1, 2015 amounted to 3.9 billion rubles, and compared to November 1, 2015, the debt increased by 11.3 percent in December. If we go further and compare the debt from December 1, 2014, we get a frightening figure in 60.8 percent. It is now clear why the Ministry of Labor increased fines for delayed wages in 2016.