Theory of everything. Deduction from wages - the procedure for deductions according to the Labor Code of the Russian Federation Application for deduction from wages

"Legislation and Economics", 2009, N 5
ARTICLE 137 OF THE LABOR CODE OF THE RF: PRACTICAL ASPECT
Practice has shown that among labor conflicts that occupy a significant place among the reasons that give rise to a labor dispute between an employer and an employee, their differences in assessing the legality of the former’s deduction of funds from the latter’s wages stand out. The emergence of such disagreements is greatly facilitated by the ambiguous presentation of the rules 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 employer’s retention of wages(hereinafter referred to as the salary) of the employee in amounts the amount of which is determined in the local act of the employer, created in order to maintain labor discipline. The combination of these problems became the reason for studying the norms of labor legislation governing this type of labor relations.
Types and methods of collection and retention
To carry out retention, i.e. failure to accrue any part of the earnings payable to the employee and transfer it to the proper person requires the employer or other authorized body to make a decision to collect from the employee the amounts specified by law. In this regard, penalties are divided into those made according to the law, indisputable, including by writ of execution, court decisions, administrative ones on the instructions of government bodies and officials who are given the discretionary right to impose fines, write off or otherwise collect from the money available to citizens funds, as well as the resulting debt in the amount established by law.
And if in practice most types of penalties do not require representatives of the employer to explain to them the rules for their implementation, then their type as indisputable (including by writ of execution) requires a detailed clarification of its legal essence. So, indisputable collection in law means the forced collection of sums of money that formed the debt of the obligated person (debtor) to the claimant, by deducting them from funds belonging to the debtor (including an individual), in order to compensate for this debt without contacting the authority , resolving property disputes. Collection in an indisputable manner is allowed only in cases expressly provided for by law, and only by officials and bodies named therein. Collection by writ of execution is one of the special cases of undisputed collection from the debtor of a certain amount of money due to the collector; it is carried out on the basis of a notary’s order executed on an authentic debt document. Thus, collection in an indisputable manner is one of the types of collections carried out using the compulsory method, and only in cases where the debtor does not repay the debt incurred by him voluntarily. In turn, retention is a way of implementing collection and ensuring the fulfillment of the debtor’s obligations.
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. - Article 138 of the Labor Code of the Russian Federation);
- citizens, public organizations and legal entities (for example, according to executive documents on the collection of alimony, compensation for harm, as well as for repayment of loans, transfer of 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 deductions. Its characteristic feature is the following: a representative of the employer, who has the right, on the basis of local legal acts, to make a decision on withholding those specified in Art. 137 of the Labor Code of the Russian Federation regarding the types of his debts to the employer, issues a decree (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 specific positions of the legislator on the withholding of amounts
from the employee's salary
So, the rules on the possibility of deducting from an 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 separate research. As stated in Part 1 of Art. 137, deductions from an 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 federal law (for example, local ones) are unlawful. If the employee does not agree with the penalties based on local regulations, the amounts withheld by the employer are subject to return either voluntarily or forcibly. It is possible to force an employer to return (additionally accrue) amounts withheld (collected) by him unlawfully by decision of the bodies considering individual labor disputes (hereinafter referred to as ORITS; Article 382 of the Labor Code of the Russian Federation), as well as according to the relevant instructions of the prosecutor (Part 4 of Article 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, cases of debt arising from an employee to an employer that allows it to be deducted from his salary include the following:
- reimbursement of unearned advances issued to the employee on account of wages;
- repayment of unspent and not returned timely advances issued in connection with a business trip or transfer to another job in another area, as well as in other cases;
- return of amounts overpaid to the employee as a result of accounting errors, as well as amounts overpaid to the employee if 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 vacation days, which is made when an employee is dismissed before the end of the working year, for 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 clauses 1, 2 or 4, part 1, art. 81, paragraphs 1, 2, 5, 6 and 7, part 1, art. 83 Labor Code of the Russian Federation.
Only for this group of deductions from the employee’s salary did the legislator provide (as an exception to the general rules on mandatory penalties associated with other groups of deductions) a special procedure for collecting from the employee his debt to the employer, giving the latter discretionary powers. The employer's discretion is expressed in the fact that he, at his own discretion, collects the advance amounts received by the employee specified in paragraph. 2 and 3 hours 2 tbsp. 137 Labor Code of the Russian Federation. In the same way, he can withhold the amount specified in paragraph. 4 hours 2 tbsp. 137, as overpaid to the employee as a result of a counting error.
The employer's discretion also applies to other cases specified in paragraph. 4 hours 2 tbsp. 137, but with significant legal reservations. Withholding on them is possible if the employee’s guilt in failure to comply with labor standards or idle time is recognized not by the prosecutor or labor inspector, but by the ORITS. This means that the payment already made to the employee during his downtime and failure to comply with labor standards did not take into account this legally significant circumstance and amounted to a larger amount than specified in Part 3 of Art. 155 and part 3 of Art. 157 Labor Code of the Russian Federation. Indisputably and even without complying with 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 paragraph. 5 hours 2 tbsp. 137.
So, in part 2 of Art. 137 provides 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 specifically 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.
Let us note right away: for all those listed in Part 2 of Art. 137 cases Labor Code The Russian Federation does not impose an obligation on the employer to notify him of their collection in advance of deducting any amounts from the employee’s salary. The performance of this noble act is, as it were, implied, but the theoretical presumption of the employer’s good faith is rarely confirmed by practice. Consequently, the employee will become aware of the deduction of these amounts, usually on the day he receives his salary (in a smaller amount than he planned). Another option is possible if there is insufficient amount (taking into account the rules of Article 138) for the employer to fully recover at one time the overpaid amounts, when the employee learns that he has a debt to the employer, but only from the document he received, for example, a pay slip issued on the day payment of wages (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 contact him in writing with a request for its recalculation, or refuse to receive it altogether, thus expressing his disagreement with the deduction 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 financially liable through ORITS for incorrectly calculated and not paid wages on time. But this can only happen if the dispute over the right to amounts not accrued by the employer is in favor of the employee (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 paragraph. 2, 3 and 4 parts 2 of this article, the employer has the right to decide to deduct 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 debt or incorrectly calculated payments, and provided that the employee does not dispute the grounds and retention sizes. Consequently, these rules do not apply to paragraph. 5 part 2 of this article, which talks about the return of amounts for unworked vacation days. It is in this case that the employer is not required to either comply with the deadlines or find out from the employee his intentions to challenge the basis and amount of withholding amounts for advance leave, since the employer does not have time for this due to the connection of this type of withholding with the moment of the employee’s dismissal. Nevertheless, it must be taken into account that the same circumstances may arise for any other deductions, but for some reason the legislator ignores the possibility of their real occurrence.
Regarding other grounds for withholding an employee’s debt listed in Part 2 of Art. 137, the following should be noted. Neither the Labor Code of the Russian Federation, nor other regulations related to these types of deductions (except for the business trip report), define a period for either a literally voluntary or a mandatory, but voluntarily, return by the employee of the amounts of debt incurred by him. Thus, the legislator deprived the employer of the opportunity to act in the manner prescribed by Part 3 of Art. 137, because it does not have a starting point from which to calculate the monthly period permissible for collecting the debt in an indisputable manner or in another compulsory manner. Moreover, applied in part 3 of Art. 137 the meaning of the concept of “indisputable recovery” is clearly ambiguous. In the absence of a stated, and therefore only implied, obligation of the employer in Part 3 of this article to find out from the employee whether he will challenge the basis and amount of the planned withholding from him or in ORITS, it is completely inappropriate to talk about the indisputable procedure for these penalties, and this is in a situation where it is practically impossible for an employee to know about them in advance.
Let's assume that the employee is notified about it in advance of the deduction and agrees with the basis and amount of his debt, but, as it turns out, prefers to pay it off himself when he has a financial opportunity. Since such a case is not taken into account by the legislator and the period for voluntary or mandatory self-repayment of the debt is not established, the employee can take an unlimited amount of time to repay his debt. Consequently, the rule of Part 3 of Art. 137 is valid if the period for voluntary or mandatory self-return is established, i.e. This rule applies only to the case of advance payment for a business trip. This means that if the employer’s order to withhold the debt is not made within a month from the date of expiration of the period established for the return of the advance (for example, for a failed business trip), the employer loses the right to collect the corresponding amounts in an indisputable manner based on its decision. If, in violation of the procedure (exceeding the deadline and (or) the employee’s disagreement with the withholding), the employer withholds the amount of the debt, then this collection will be unlawful, which will oblige the employer to return the withheld amount voluntarily, and if refused, forcibly.
Based on the above, the collection of sums of money when an employee disputes the basis and amount of withholding for the repayment of almost any type of advance, as well as when the employer misses a month’s deadline, compensation for these amounts can only be made by court decision, which, as will be shown below, is also problematic (Article Articles 386 and 387 and Part 2 of Article 392 of the Labor Code of the Russian Federation). Nevertheless, the employer should not forget that the List of documents according to which debt collection is carried out in an indisputable manner on the basis of executive inscriptions of the bodies performing notarial acts, approved by Resolution of the Council of Ministers of the RSFSR dated March 11, 1976 N 171 (as amended) is still in force. dated December 30, 2000), which indicates the following types of employee debt arising from labor relations:
- unearned advance payment issued on account of wages, a one-time allowance, travel expenses and daily allowances issued to him upon conclusion of an organized employment contract for work in industry, construction or transport in connection with non-arrival at the place of work;
- a sum of money for bedding issued to him and not returned to him upon dismissal from work;
- the amount of money for uniforms remaining for dismissed employees of associations, institutions, enterprises, organizations in which the wearing of uniforms has been introduced;
- a sum 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 their issuance of obligations to repay the specified debt.
The employer needs to know that when withholding on the basis of a notary's writ of execution the amount of debt due to him from the debtor, he must comply with the rules on the deadline for circulation, the types of documents provided to the notary and other organizational requirements, and also take into account the procedure for forced collection defined in Section. 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 the following cases:
- counting error (paragraph 4, part 2, article 137);
- if ORITS found the employee guilty of failure to comply with labor standards (part 3 of article 155) or downtime (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 unlawful 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 paragraph. 4. In part 4 of Art. 137 there are no such types of debt repayment as:
- reimbursement of unearned advances issued to the employee on account of wages;
- repayment of unspent and not returned timely advances 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 vacation days, made upon dismissal of an employee before the end of the working year, for which he has already received annual paid leave.
Consequently, 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 committed rule-making negligence, creating an intra-article conflict of rules 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 “withholding” and “collection” in the Labor Code of the Russian Federation, they are used either in their general legal meaning or in the general literary meaning given to them in explanatory dictionaries of the Russian language. With any of these approaches, the words “withhold” and “collect” in the context of Art. 137 of the Labor Code of the Russian Federation have a relationship with each other as a cause (to collect) and a consequence (to withhold). Thus, based on the content of Part 4 of Art. 137, cases listed in paragraph. 2, 3 and 5 hours 2 tbsp. 137, are formally not exceptional and cannot be deducted from them for amounts overpaid to the employee. Apparently, in Part 4 of Art. 137, the legislator means penalties, decisions on which were made not by the employer, but by other competent authorities, as indicated by the duplication in this part of the article of cases included in paragraph. 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 we interpret Part 4 of Art. 137, then the penalties listed in paragraph. 2, 3 and 5 of Part 2 refer to cases where deduction is possible if the salary was overpaid to the employee in connection with his unlawful 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 excessively paid wages to an employee, if the court finds that this part of it was received by the employee as a result of his unlawful actions or inactions.
Concretization of the analysis of norms,
set out in part 2 of Art. 137 Labor Code of the Russian Federation
Analysis of the content of the cases listed in paragraph. 2, 3 and 5 hours 2 tbsp. 137 allows us to draw at least two conclusions.
Firstly, these cases are literally not related to the unlawful actions of the employee, as a result of which the salary was paid to him in excess, since the employer makes the payments indicated in them, guided by the relevant regulations of the acts regulating labor relations. However, this conclusion is permissible under one condition: unless the employee misled the employer about the rationality of their payments, 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 his refusal to voluntarily return overpaid amounts be considered unlawful actions of an employee, if for most types of deductions the legislator has not even established a period for mandatory reimbursement of these amounts by the employee?
Secondly, these cases are associated not only with the withholding of overpaid amounts from wages. They also apply to other payments if debts need to be collected during the final settlement with the employee. For example, the case specified in paragraph. 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 deduction described in Part 2 of Art. 137, separately, we will try to identify their true meaning and the legal consequences generated by them for the parties 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 “calculating errors of the legislator”, and we will consider only the intra-system legal connection of Art. 137, limiting it to three parts. At the same time, we will take into account that the legislator has the ability to withhold any items listed in Part 2 of Art. 137 types of debt incurred by an employee to the employer connect 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 remuneration of employees includes a limitation 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 components due to him for the corresponding period, the amount and grounds for deductions made, as well as the total amount of money to be paid (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 with the application of Art. 137 did not receive a clear explanation. In addition, in the available specialized literature and in current materials on summarizing judicial practice, there are no unambiguous answers to the questions that law enforcement officers have related to the timing and sources of withholdings, their sizes and other accompanying organizational procedures. 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.
Analysis of the second paragraph of Part 2 of Art. 137 Labor Code of the Russian Federation
The legal mechanism for implementing in practice the legislator's instructions on the employer's ability to withhold the employee's debts from his salary on the basis of paragraph. 2 hours 2 tbsp. 137 looks like this. Deductions from an employee's salary to pay off his debt to the employer may be made to reimburse an unearned advance paid to the employee on account of his 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 against potentially due salary in full for work in a particular month, following the results of which it turned out that the final salary accrued was less than the amount of the salary advance already received;
- the lack of legal significance of the reason for the employee’s failure to earn the full amount of salary, from which the employer established the amount of the salary advance (for example, the employee’s illness, his involvement in performing public or state duties), when he retained his average earnings, or his dismissal from work, etc.
Let me remind you that there is no regulatory requirement for a percentage or other relationship 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 Resolution of the USSR Council of Ministers of May 23, 1957 N 566 “On the procedure for paying wages to workers for the first half of the month,” which is in force in accordance with Art. 423 of the Labor Code of the Russian Federation in the part that does not contradict the Code, it can hardly be considered applicable to all employees for a number of formal legal reasons indicating its incomplete compliance with the Labor Code of the Russian Federation;
- the period for the employer to make a decision on forced withholding of the difference between the paid salary advance and the accrued salary cannot exceed a 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: which regulatory legal act establishes exactly the period for the voluntary return by an employee of a salary advance paid in excess of wages? There is no answer to this question! 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 use common legal methods to overcome legal gaps in order to make a decision on withholding this type of debt of the employee;
- the employee challenges the basis and amount of the withholding. This rule requires additional regulation, including clarification of the legal mechanism for its implementation, at least in by-laws. As already noted, an employee can learn about this type of deduction only on the day of salary payment and provided that the employer follows the rules set out in parts 1 and 2 of Art. 136. Suppose that at the next salary payment, its advance exceeded the amount that the employer under the employment contract would have to accrue to the employee, but there are no other payments due to the employee. In this case, the employee’s debt will be indicated on the payslip, and before the day of payment of the next salary advance 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 kind of opportunity can we talk about in a real situation to challenge the employer in advance the amount and basis for the withholding of the allegedly overpaid amount that he has already made? Thus, defective norms of labor legislation in this type of retention lead without alternative to the employee’s appeal to the ORITS or administrative authorities for protection of his right to wages.
Analysis of paragraph three of part 2 of Art. 137 Labor Code of the Russian Federation
Analysis of the content of the norms defining the rules for deduction from wages on the basis of paragraph. 3 hours 2 tbsp. 137, allows us to say that almost all the problems characteristic of retention on the basis of paragraph. 2 part 2 of this article are also inherent in this case. So, this paragraph allows deduction from the employee’s salary to pay off his debt to the employer, resulting from an unspent and not returned timely advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases. Such cases can be any so-called issuance of money on account of wages associated with the purchase, for example, of household equipment for a community cleanup or office supplies, or receipt of funds to pay for refilling cartridges for office equipment in a specialized workshop, etc.
In contrast to the unresolved problems with the deadline for the previously considered case (paragraph 2, part 2, article 137), here the period for the voluntary-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 work.
In this case, the employee is formally obliged to return from a business trip not to his place of residence or registration, but precisely to the location of the organization that sent him on the business trip. The requirement to record 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 using one’s own transport and traveling on foot. Thus, recording on the ticket a place of arrival of the vehicle other 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 limit 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 clause 26 of the Regulations 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, upon returning from a business trip, an employee is obliged to 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 advance payment given to him for travel expenses before leaving on a business trip.
Consequently, only three days after the employee returns to work, the employer has the right to withhold the difference between the amount of the travel advance issued and documents confirming the expenditure of funds only partially or not specified in Art. 168 of the Labor Code of the Russian Federation for designated 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 about 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 the basis and amount of the deduction that the employer intends to make from his next salary will be indisputable for him. If the employee does not give written confirmation of his agreement with both the basis and the amount of withholding of this alleged debt, the employer will have to realize his claims for a certain amount through the court, which, as it turned out, did not reach a logical conclusion in the labor relationship.
From the established practice regarding this type of withholding, it follows: if the advance report on the business trip has been approved, recovery from the employee of any amounts associated with it can only be made by a court decision and provided that after the approval of this report, abuses of law and ( or) falsification of documents by the employee.
However, speaking about other cases contained in paragraph. 3 hours 2 tbsp. 137, which specifies an unlimited number of reasons with which the legislator connects the employer’s issuance of an advance to an employee, in particular, one who is transferred to another job in another locality, it should be noted that there is no legitimate opportunity to determine the moment when an advance was not returned in a timely manner. Consequently, there is no legal possibility to withhold from the employee’s salary within a month the amounts not spent by him to repay his debt to the employer, resulting from such an advance not being voluntarily returned. By the way, Art. 169 of the Code does not oblige the employee to voluntarily return such an advance, nor does it oblige him to establish a contractual period for return. On top of everything else, it is not connected to Art. 137, since in it the move of an employee to work in another area is not associated with him performing only other work there, and not any work. In addition, the frequent use of the words “other work” in various contexts in the Labor Code of the Russian Federation requires a separate explanation for specific norms of the Code (the word “other” in its basic meaning means “different 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.
The failure of the legislator to indicate specific reasons for the employee’s move to work in another area, with which advance payments are associated, is also subject to a negative assessment, since these reasons are heterogeneous. Thus, a 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 an employee on appropriate grounds and the choice of a vacancy in other localities, if this is provided for by a collective agreement, agreements, or employment contract ( Articles 74, 76 and many other articles of the Code). In addition, this may 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 paragraph four of part 2 of Art. 137 Labor Code of the Russian Federation
Paragraph 4, part 2, art. 137 allows for deduction from an employee’s salary to pay off his debt to the employer and return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee if ORITS recognizes the employee’s guilt in failure to comply with labor standards (Part 3 of Article 155) or downtime (Part 3 of Article 157). Analysis of the content of the norms that collectively determine the rules for deduction from wages on the basis of paragraph. 4, allows us to say: almost all the problems characteristic of retention on the basis of Part 2 of Art. 137 are also inherent in this case.
In the examined relevant acts of the period specified in Part 3 of Art. 137, no, and the employee can repay these debts in a time unlimited by law, unless the employer convinces him to determine such a period in a special written agreement. Thus, it can be stated once again: the employer does not have the legal opportunity to withhold from the employee’s salary within a month the amount to repay his debt, resulting from amounts overpaid to him as a result of either accounting errors of an accountant or computer operator, or not detected in a timely manner by the employer the employee’s guilt in failure to comply with labor standards and (or) downtime.
Noteworthy is the legal depravity of deduction 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 fairness: an employee could spend a certain amount without knowing that he received it in excess. Consequently, he really cannot return exactly those banknotes that were excessively issued to him; he will only return 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 improper application of labor legislation or other regulatory legal acts containing labor law norms. An example of such an error could be an excessively accrued amount due to incorrect application by the accounting department of the Regulations on Bonuses. However, in this case, according to Part 4 of Art. 137 liability in the form of compensation for damage to the organization is borne by the guilty employee, who is assigned to the employer’s administration.
There are also ambiguities in the withholding (return) of amounts overpaid to an employee in the event that 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 failure to comply with labor standards, failure to fulfill labor (official) duties through the fault of the employee, payment of the standardized part of the salary is made in accordance with the volume of work performed. In turn, in accordance with Part 3 of Art. 157 downtime due to the employee’s fault is not paid. Moreover, the employee is obliged to inform his immediate supervisor or another representative of the employer about the beginning of downtime caused by equipment breakdown and other reasons that make it impossible for the employee to continue to perform his job functions (Part 4 of Article 157). If the employee did not report his downtime, then, being, for example, a piece worker or a lump-sum paid employee, he will not receive compensation for lost time, therefore, remaining silent about the downtime is not in his interests. This means that keeping silent about downtime is beneficial only to an employee who is on a salary or a time-based basis. However, even in this case, if his work is related to quantitative, and not just 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 standardized task, which should not go without assessment from the employer's administration.
Thus, only from the moment the employer’s representatives record both the failure to comply with labor standards and the beginning of the employee’s downtime, these documented facts can be recognized as grounds for non-accrual of the standardized part of the salary. Then a procedure will be required to clarify whose negligence it was not established that specific persons were guilty of the occurrence of these events from the moment they occurred until the moment the employee’s salary was paid in full. Moreover, there is no definition of the concept of “standardized 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-compliance with labor standards, in particular production or time standards, and even more so about non-fulfillment of labor duties by a salaried employee (Articles 160 and 163). Therefore, Part 3 of Art. 155, which contains unclear provisions, is a potential source of disagreement between employee and employer.
So, when withholding debt on the basis of paragraph. 4 hours 2 tbsp. 137, many questions of a practical nature arise, related both to determining the employee’s guilt in paying him excessively accrued amounts, and to the employer’s actions 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 labor dispute commission (hereinafter referred to as the LCC) or by the court. But the CCC is not authorized by the legislator to consider the employer’s requests (Article 385 of the Labor Code of the Russian Federation), and the court considers the employer’s statements arising from the labor relationship only on the issue of compensation by the employee for damage caused to property within the employer’s area of responsibility (Article 238, 248, 391 and 392 of the Labor Code of the Russian Federation).
Consequently, in order to restore justice, the employee himself (!) must contact the ORITS with a statement admitting his guilt or committing unlawful acts. Therefore, either the employee’s debts must be recognized as one of the types of property of the employer in Chapter. 39 of the Labor Code of the Russian Federation (as was previously the case 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 a question arises that remains unanswered in the Labor Code of the Russian Federation: how can an employer legally protect his interests and rights in cases related to Art. 137? To get out of this situation, when going to court, the employer will have to rely not on the norms of the Labor Code of the Russian Federation, but on general legal approaches to cases of protection of violated rights. As is known, the Supreme and Constitutional Courts of the Russian Federation, through the interpretation of 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 paragraph five of part 2 of Art. 137 Labor Code of the Russian Federation
Analysis of the content of the norms that collectively determine the rules for deduction from wages on the basis of paragraph. 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 withholding an employee’s debt, set out in paragraph. 5 part 2. So, deductions from the employee’s salary to pay off his debt to the employer can be made when the employee is dismissed before the end of the working year, for 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, art. 81, as well as paragraphs 1, 2, 5, 6 and 7 of Part 1 of Art. 83 Labor Code of the Russian Federation.
It follows from the above that when dismissing an employee 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 “on account”, but proportional to the days he did not work all vacations that he received in advance. In para. 5 hours 2 tbsp. 137, the legislator did not specify the types of leave 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 annual paid leave is determined by summing up the main and all additional paid leaves due to the employee, calculated in calendar days, and is not limited to a maximum limit.
Thus, the vacation granted to an employee before dismissal may look, for example, like a set of vacations for different working years, which the employee managed to use only partially due to his recall from vacation, and deductions in this case, as is known, contrary to common sense, are not permissible (Article 125 Labor Code of the Russian Federation). This may also be an extended vacation by adding transferred vacations not used by the employee over the past years to the next, but advance vacation (Article 124). Any combinations significantly complicate the possibility of returning to the employer paid vacation funds not worked by the employee, taking into account the instructions of Art. 137; Only deduction from the salary, the composition of which is determined in Part 1 of Art. 129. But, as is known, the composition of the “calculation” payment can be much wider than the composition of the salary, which requires additional clarification by the legislator of the possibilities of resorting to other payments to retain the employee’s debt upon dismissal.
However, the employer, when making the final payment upon dismissal of an employee, has the right to withhold amounts in proportion to any unworked but fully paid leave. For these purposes, the calculation of the time worked by a specific employee in a working year for a given employer is carried out based on the provisions of Art. 121, which defines the rules for calculating length of service giving the right to annual paid basic and additional leave.
In contrast to the rules applicable to para. 2 - 4 hours 2 tbsp. 137, withholding in the case specified in paragraph. 5 part 2 of this article (refund of amounts for unworked vacation days) is not limited either by the deadlines or by compliance with the procedure for challenging the basis and amount of this type of withholding. 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 collections from him. At the same time, the amount of the collection and deduction itself is limited only by the amount proportional to the payment of days of advance leave not worked in connection with the dismissal. However, as a rule, this amount is not enough to pay off the employee's debt in full. Moreover, in the “calculated” amount received upon dismissal immediately after the used, especially the total vacation, the salary component may be close to zero, and it is impossible to formally deduct 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 for 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 leaves 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 set duration and with 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 all of the above, 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 legal norm 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 competencies 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.
To summarize, we note the following. The Labor Code of the Russian Federation and other regulatory legal acts accompanying it in regulating the procedure for withholding amounts of debt from an employee’s salary do not contain comprehensive answers to the complex practical questions discussed above. At the same time, based on the analysis, it is clear that it is necessary to introduce an unambiguous rule into the Code, according to which the employer has the right to file a claim in court against the employee to collect from him amounts of debt arising from the grounds of Art. 137, if the possibility of its repayment from the salary in the indisputable manner provided for by the current labor legislation is excluded. Consequently, in order to correct the current situation, it must be recognized: debts not repaid by an employee upon dismissal are an independent type of damage caused to the employer, since failure to repay debts actually reduces the size of his property. To do this, you need to at least make the appropriate additions and changes to Part 2 of Art. 238, part 1 art. 243 Labor Code of the Russian Federation.
V.V. Arkhipov
Assistant professor
Department of Labor Law
and social security rights
Faculty of Law
Academy of Labor and Social Relations
Signed for seal
18.05.2009

Full text of Art. 137 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 137 of the Labor Code of the Russian Federation.

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

Deductions from an employee’s salary to pay off his debt to the employer can be made:
to reimburse an unpaid advance issued to an employee on account of wages;
to repay an unspent and not returned timely 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 amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or simple work (part three of Article 157 of this Code) Code) ;
upon dismissal of an employee before the end of the working year for 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 one of Article 77 or paragraphs 1, 2 or 4 of part one 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 to deduct from the employee’s salary no later than one month from the end of the period established for the return of the advance, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of the withholding.

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 employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or downtime (part three of Article 157 of this Code);
if the wages were overpaid to the employee in connection with his unlawful actions established by the court.

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

1. According to Part 1 of Art. 8 of ILO Convention No. 95 "Concerning the Protection of Wages" (1949), deductions from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in a collective agreement or in a decision of an arbitration body.

Based on the provisions of Part 1 of Art. 137 of the Labor Code of the Russian Federation, deductions from an employee’s salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws (see the RF IC, Federal Law “On Enforcement Proceedings”, Federal Law of May 19, 1995 N 81-FZ “On State Benefits to Citizens” with children", Federal Law "On compulsory social insurance in case of temporary disability and in connection with maternity", Federal Law "On Trade Unions"). Moreover, such deductions can be made both in favor of the employer and in favor of other persons.

So, for example, in accordance with Article 109 of the RF IC, the administration of the organization at the place of work of a person obligated to pay alimony on the basis of a notarized agreement on the payment of alimony or on the basis of a writ of execution must withhold monthly alimony from the salary and (or) other income of the person, obligated to pay alimony.

Taking into account the analysis of current legislation, M. Volkova indicated that deductions from an employee’s salary must be made in the following sequence:
- personal income tax is withheld;
- requirements for writs of execution are satisfied;
- other deductions are made.

________________
See: Volkova M. Types of deductions from employees’ wages // Institutions of culture and art: accounting and taxation. 2012. N 9. P.50.

2. At the same time, Part 2 of the commented article defines the grounds for deductions made by decision of the employer to repay the employee’s debt, and contains an exhaustive list of such grounds.

Deductions from the employee's wages are made by the employer to reimburse the unearned advance payment given to the employee on account of wages.

Withholding is also made to repay unspent and not timely returned advances issued in connection with a business trip or transfer to another job in another locality, as well as in other cases.

Letter No. 02-09-11/06-5250 of the Federal Insurance Service of Russia dated April 14, 2015 contains clarifications regarding the calculation of insurance premiums in such situations. The FSS of Russia explains that funds issued on account, for which the employee does not submit an advance report in a timely manner, are recognized as the employee’s debt to the organization and these amounts can be withheld from the employee’s salary. If the employer withheld the above funds from the employee’s salary on the basis of the commented article, the object of taxation for insurance premiums does not arise. In the event that the employer decides not to withhold the mentioned amounts, these amounts are considered as payments to employees within the framework of the employment relationship and will be subject to insurance contributions in the generally established manner. If the employee submits an advance report with supporting documents (with copies of sales receipts for the purchase of goods, works (services), invoices, invoices), in the case where the organization has already accrued insurance premiums for the mentioned amount of payments, the organization has the right to recalculate the base for accruing insurance contributions and amounts of accrued and paid insurance premiums.

The employer may make deductions from the employee’s salary in order to return amounts overpaid to the employee due to accounting errors, as well as amounts if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards or downtime.

Deductions can also be made for unworked vacation days if an employee is dismissed before the end of the working year for which he has already received annual paid leave.

Deductions for these days are not made if the employee is dismissed for the following reasons:
- the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the appropriate job ();
- liquidation of the organization (clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
- reduction in the number or staff of the organization’s employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
- change of owner of the organization’s property (this applies to the head of the organization, his deputies and the chief accountant) ();
- conscription of an employee for military service or sending him to an alternative civil service replacing it (clause 1, part 1, article 83 of the Labor Code of the Russian Federation);
- reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court (clause 2, part 1, article 83 of the Labor Code of the Russian Federation);
- recognition of the employee as completely disabled in accordance with the medical report (clause 5, part 1, article 83 of the Labor Code of the Russian Federation);
- death of an employee, as well as recognition by the court as deceased or missing (clause 6, part 1, article 83 of the Labor Code of the Russian Federation);
- the occurrence of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant subject of the Russian Federation (clause 7, part 1, art. 83 Labor Code of the Russian Federation).

3. The employer has the right to decide to deduct 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 debt or incorrectly calculated payments.

In this case, the employer makes this decision if there are no disagreements with the employee on the grounds and amount of the deduction.

Making deductions from an employee’s salary to pay off his debt to the employer is the latter’s right, not his obligation.

According to Art. 9 of ILO Convention No. 95 prohibits any deduction from wages, the purpose of which is the direct or indirect payment by workers to the employer, his representative or any intermediary (such as a recruiting agent) for obtaining or retaining service.

4. Within the meaning of Part 4 of Art. 137 of the Labor Code of the Russian Federation, overpaid wages means a payment that should not have taken place, but was actually made.

Wages overpaid to an employee cannot be recovered from him. This rule applies even if such payment was made due to incorrect application of labor legislation or other regulatory legal acts containing labor law norms.

The exception is when:
- excess wages were accrued due to a calculation error;
- the body for the consideration of individual labor disputes recognized the employee’s fault for failure to comply with labor standards or idle time;
- wages were overpaid to the employee due to his unlawful actions established by the court.

Provided for in Part 4 of Art. 137 of the Labor Code, legal norms are consistent with the provisions of ILO Convention No. 95 (Article 8), Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, mandatory for application by virtue of Part 4 of Art. 15 Constitution of the Russian Federation, Art. 10 of the Labor Code of the Russian Federation and contain an exhaustive list of cases when it is permissible to recover from an employee overpaid wages.

Another comment to Art. 137 Labor Code of the Russian Federation

1. Deductions from an employee’s salary can be made only in cases provided for by the Labor Code or other federal laws. The ban on deductions, in addition to the cases established by law, ensures the protection of workers' wages.

2. The content of the commented article corresponds to the provisions of ILO Convention No. 95 “On the Protection of Wages” (adopted in Geneva on July 1, 1979). Article 8 of the said Convention provides that deductions from wages are permitted under the conditions and within the limits prescribed by national legislation or specified in collective agreements or decisions arbitration courts. Workers must be notified 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 employee’s position in comparison with those provided for by law.

Any deductions at the discretion of the employer related to the imposition of part of the production costs on the employee, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee are not allowed.

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

4. Deductions for the purpose of collecting tax on personal income are made in accordance with the Tax Code. Article 226 of 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 accrued tax on personal income. These deductions must be made directly from the taxpayer's income when it is actually paid. In this case, the withheld tax amount cannot exceed 50% of the payment amount.

5. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Penal Code, a person sentenced to a fine is obliged to pay it within 30 days from the date the sentence enters into legal force or within another period if the court decides to pay in installments. A convicted person who has not paid the fine within the prescribed period is considered to be maliciously evading payment of the fine, and if the fine is established as an additional type of punishment, the bailiff collects the fine forcibly (Article 32 of the Penal Code). In this case, one of the enforcement measures is the foreclosure of wages in accordance with Chapter. 12 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”.

6. 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 making such deductions is a court verdict. In accordance with Art. 40 of the Penal Code, deductions are made from the wages of the convicted person in the amount established by the court verdict. Correct and timely deduction from the convict's salary and transfer of deduction amounts in the prescribed manner are assigned to the employer. The procedure for making deductions is established by Art. 44 PEC.

7. Deductions from wages are also possible on the basis of writs of execution - writs of execution issued on the basis of a decision, sentence, determination and order of courts (judges); settlement agreements approved by the court; court orders, etc. In accordance with Art. 98 of the Federal Law “On Enforcement Proceedings”, wages may be levied when executing enforcement documents containing a requirement to collect periodic payments; when collecting amounts not exceeding 10 thousand rubles; in the absence or insufficiency of the debtor's funds and other property to fulfill the requirements of the writ of execution in full. Writs of execution and other enforcement documents are sent to the employer for collection.

8. The Labor Code provides for the possibility of deductions from wages to repay the employee’s debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as for the purpose of compensation by the employee for property damage caused to the employer.

On the procedure for compensation by an employee for property damage caused to the employer, see Art. 248 TC and commentary to it.

9. An employee’s debt to the employer may arise as a result of the advance payment of wages to the employee 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 purpose of a business trip or moving to another location and does not return it voluntarily, its amount may be withheld from the employee’s salary.

For amounts given to employees during business trips, see Art. 168 TC and commentary to it.

10. An employer’s order to withhold an advance from wages can be made if two conditions are met: 1) the employee does not dispute the grounds and amounts of the deductions; 2) the order is made no later than one month from the date of expiration of the period established for the return of the advance.

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 groundlessness of the return of these amounts, as well as to the incorrect determination of their amounts.

The monthly period begins on the day established for the return of the advance.

When returning an unearned 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 repayment period is three working days after the employee returns from a business trip (clause 26 of the Regulations on the specifics of sending employees on business trips, approved by Decree of the Government of the Russian Federation of October 13, 2008 N 749).

11. A debt to the employer may also arise if excess amounts are paid to the employee due to a calculation error. A counting error should be understood as an error in arithmetic operations when calculating the amounts to be paid. An employer's order to deduct from wages amounts overpaid due to a calculation 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 the incorrectly calculated amounts. If the employer misses a month's deadline, amounts overpaid to the employee may be recovered in court.

Amounts overpaid due to incorrect application of wage legislation, a collective agreement, agreement or employment contract, as well as errors of an organizational and technical nature (for example, when re-transferring funds to an employee’s bank account) are not the result of a counting error and are not subject to reimbursement. ). See also Determination of the RF Armed Forces of January 20, 2012 N 59-B11-17.

12. 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 failure to comply with production standards or idle time.

On remuneration for non-fulfillment of production standards, see Art. 155 TC and commentary to it.

On remuneration for downtime, see Art. 157 Labor Code and commentary to it.

13. Amounts paid to the employee as vacation pay are subject to withholding in the event of his dismissal before the end of the working year for which the vacation was granted.

For the procedure for granting vacations, see Art. 122 TC and commentary to it.

If an employee is dismissed before the end of the working year for which the leave was granted, deductions are made upon final settlement with the employee. This rule does not apply when an employee is dismissed on the grounds provided for in paragraph 8 of Art. 77, paragraphs 1, 2, 4 art. 81, paragraphs 1, 2, 5 - 7 art. 83 TK.

14. Amounts overpaid to the employee in connection with his unlawful actions established by the court are subject to withholding. For this type of deduction, the commented article does not provide special rules. Since the unlawfulness of the employee’s actions has been established by the court, the amount to be withheld is also established by the court. The deduction itself in this case is carried out according to the rules established for deductions based on a court decision.

Consultations and comments from lawyers on Article 137 of the Labor Code of the Russian Federation

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

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

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

to reimburse an unpaid advance issued to an employee on account of wages;

to repay an unspent and not returned timely 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 amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee, if the body for the consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or simple work (part three of Article 157 of this Code) Code);

upon dismissal of an employee before the end of the working year for 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 one of Article 77 or paragraphs 1, 2 or 4 of part one 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 to deduct from the employee’s salary no later than one month from the end of the period established for the return of the advance, repayment of debt or incorrectly calculated payments, and provided that if the employee does not dispute the grounds and amounts of the withholding.

counting error;

if the body for consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (part three of Article 155 of this Code) or downtime (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 force of law - income tax and insurance contributions to the Pension Fund;

2) according to court decisions - fines imposed administratively, when serving correctional labor for committing a crime, when compensating for damage caused by the parties to the labor 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 reimburse an unpaid advance issued to an employee on account of wages;

2) to repay an unspent advance issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;

3) to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee in case of failure to comply 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 for 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 paragraphs 1, 2 or paragraph 4 of part 1 of Art. 81, paragraphs 1, 2, 5, 6 and 7 art. 83 of the Labor Code of the Russian Federation.

In all other cases, deductions are made by the employer filing a claim in court. In the cases listed above (except for the collection of an unpaid advance), the employer may issue a corresponding order no later than one month.

counting error;

if the body for consideration of individual labor disputes 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 simple work (Part 3 of Article 157 of the Labor Code of the Russian Federation);

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

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

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

2. Contents of Art. 137 of the Labor Code of the Russian Federation corresponds to the provisions of ILO Convention No. 95 “On the Protection of Wages”. Article 8 of the Convention provides that deductions from wages are permitted under the conditions and within the limits prescribed by national legislation or determined in collective agreements or in decisions of arbitration courts. Workers must be notified 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 employee’s position in comparison with those provided for by law.

Any deductions at the discretion of the employer related to the imposition of part of production costs on the employee, satisfaction of claims from third parties against the employer or employee without a court decision or the consent of the employee are not allowed.

3. Currently, other codes and federal laws establish the possibility of deduction from wages when collecting taxes on the income of individuals, when collecting administrative fines, fines as a criminal penalty, when serving a sentence in the form of correctional labor, and when executing court decisions.

4. Deductions for the purpose of collecting 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 accrued tax on personal income. These deductions must be made directly from the taxpayer's income when it is actually paid. In this case, the withheld tax amount cannot exceed 50% of the payment amount.

5. In accordance with Art. 32.2 of the Code of the Russian Federation on Administrative Offenses, 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 institution. In case of failure to pay an administrative fine on time, a copy of the decision imposing the fine is sent by the judge (body, official) who issued the decision to the employer at the place of work of the person prosecuted in order to deduct the amount of the fine from wages.

6. A fine as a criminal punishment is established by a court verdict. In accordance with Art. 31 of the Criminal Executive 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 legal force. If the fine is not paid, the penalty is voluntarily applied to the property of the convicted person, and if the amount of the fine does not exceed two minimum sizes wages, in the absence of property or insufficient property to fully repay the amount of the fine, the penalty may be applied to wages. Execution of punishment in the form of a fine is entrusted 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 making such deductions is a court verdict. In accordance with Art. 40 of the Criminal Executive Code of the Russian Federation, deductions are made from the wages of the convicted person in the amount established by the court verdict. Correct and timely deduction from the convict's salary and transfer of deduction amounts in the prescribed manner is the responsibility of the employer. The procedure for making deductions is established by Art. 44 PEC.

8. Deductions from wages are also possible on the basis of writs of execution - writs of execution issued on the basis of a decision, sentence, determination and order 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 collecting amounts not exceeding two minimum wages; if the debtor does not have property that can be foreclosed on. Writs of execution and other enforcement documents are sent to the employer for collection.

9. The Labor Code provides for the possibility of deductions from wages to repay the employee’s debt to the employer in the cases specified in Art. 137 of the Labor Code, as well as for the purpose of compensation by the employee for property damage caused to the employer.

On the procedure for compensation by an employee for 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 advance payment of wages to the employee 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 purpose of a business trip or moving to another location and does not return it voluntarily, its amount may be withheld from the employee’s salary.

For amounts given to employees during 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 if two conditions are met:

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

The order was 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 groundlessness of the return of these amounts, as well as to the incorrect determination of their amounts.

13. The monthly period begins from the day established for the return of the advance.

When returning an unearned 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 repayment period is three days after the employee returns from a business trip (Clause 19 of the Instructions on Business Travel, approved by the Resolution of the USSR Ministry of Finance, the USSR State Committee for Labor and the All-Russian Central Council of Trade Unions dated April 7, 1988 (Bulletin of the USSR State Labor Committee. 1988 . N 8)).

14. A debt to the employer may also arise if excess amounts are paid to the employee due to a calculation error. A counting error should be understood as an error in arithmetic operations when calculating the amounts to be paid. An employer's order to deduct from wages amounts overpaid due to a calculation 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 the incorrectly calculated amounts. If the employer misses a month's deadline, amounts overpaid to the employee may be recovered in court.

Amounts overpaid due to improper application of wage legislation, a collective bargaining agreement, an agreement or an employment contract are not the result of an accounting error and are not subject to reimbursement.

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 failure to comply with production standards or idle time.

On remuneration for non-fulfillment of production standards, see Art. 155 of the Labor Code of the Russian Federation and commentary to it.

On remuneration for downtime, see Art. 157 of the Labor Code of the Russian Federation and commentary to it.

16. Amounts paid to the employee as vacation pay are subject to withholding in the event of his dismissal before the end of the working year for which the vacation was granted.

For information about the procedure for granting vacations, see it.

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 an organization or termination of activities by an 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 of Article 81 of the Labor Code of the Russian Federation);

In connection with the employee’s conscription for military service or his assignment to an alternative civil service replacing it (clause 1 of 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 of article 83 of the Labor Code of the Russian Federation);

In connection with the recognition of the employee as completely disabled in accordance with the medical report (clause 5 of 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 recognition by the court of an employee or employer - an individual as deceased or missing (clause 6 of Article 83 of the Labor Code of the Russian Federation);

Due to the occurrence of emergency circumstances that impede the continuation of labor relations (clause 7 of article 83 of the Labor Code of the Russian Federation).

17. Amounts overpaid to the employee in connection with his unlawful actions established by the court are subject to withholding. For this type of deduction, Art. 137 of the Labor Code of the Russian Federation does not provide special rules. Since the unlawfulness of the employee’s actions has been established by the court, the amount to be withheld is also established by the court. The deduction itself in this case is carried out according to the rules established for deductions based on a court decision.

Performing work duties in our time is not free, since each employee is entitled to a salary. The legislation provides for cases when the amount of payment will be reduced as a result of deduction from wages provided for in Article 137 of the Labor Code of the Russian Federation and other Federal laws. To know in more detail the rights and obligations, as well as the procedure for collecting wages, you should consider this issue in more detail.

salary deductions

This law, and specifically Article 137 of the Labor Code of the Russian Federation, stipulates cases that grant the employer the right to withhold a certain amount from wages. They are as follows:

for an unpaid advance issued in advance;
repayment of unspent advance that was not returned on time;
for erroneous accrual of more than the required amount;
for paid annual leave if the dismissal occurred before the end of the working year.

This recovery from salary is possible only within a month after the occurrence of the event. Also, the employee should not have any objections, including challenging it in court.

You can find out what percentage of the salary the advance is in this article.

Income tax after deduction from wages

Mandatory collections are made from the salary, which include personal income tax and penalties based on the results of the issuance of a writ of execution. Personal income tax is withheld from wages by employers based on the amount calculated by tax agents on a monthly basis. Income tax is 13 percent of wages after withholding. This tax rate of 13 percent is always taken into account for standard deductions provided for in Article 218 of the Labor Code of the Russian Federation. For some other types of income there may be an individually calculated rate.

Withholding of alimony from wages according to a writ of execution

The presence of a writ of execution is mandatory when withholding alimony. It indicates the amount of the payment, which is set in a fixed sum of money, or a certain percentage can be deducted from the salary. Collection of alimony amounts occurs monthly. There are only 3 days for this after the salary is calculated. It is worth noting that alimony is transferred after personal income tax has been deducted from the total amount. Also, when calculating the amount of alimony, financial assistance and travel allowances cannot be taken into account.

The procedure for collecting wages to pay alimony is quite simple. The money goes to the account, which is usually registered in the writ of execution. This account belongs to the FSSP, and from it funds are transferred to the recipient’s account. Moreover, at his request, they can arrive not every month, but quarterly. If an employee’s income level increases, the employer must provide this information, otherwise sanctions will be applied to him.

Application for deduction from wages - sample

An employee can independently take the initiative to collect funds from wages. In this case, he needs to write an application addressed to the employer and indicate in it the following information:

at the top there is a “header”, where the full name and position of the manager and employee are indicated;
document's name;
request and reasons for penalties;
amount of penalties;
details for sending funds;
start date and collection procedure;
date and signature.

Order to withhold funds from wages

The Labor Code of the Russian Federation does not have an official form for writing an order for automatic payments of funds from wages. The main thing is to provide the following information:

name of the enterprise;
Title of the document;
date and order number;
collection data;
signature of the manager, accountant and employee.

Although the order is written in a free form, its content must contain information about the person from whom the recovery is being made, in what amount, and what grounds there are for this.

The maximum amount of deductions from wages under Article 138

Determines the limit on the amount of deductions from wages. According to this article, the total amount of all deductions from wages cannot exceed 20%, except as otherwise provided in the Federal Law. In some situations the maximum size may increase to 50%. This can primarily happen when collecting under a writ of execution. This is also possible if several executive documents are present. There are cases when the maximum amount of recovery can increase to 70%. They are as follows:

correctional labor by court decision;
alimony;
when causing harm to health;
because of the crime committed;
payments due to the loss of a breadwinner.

It is important to note that the increased amount of payments can only be withheld for alimony for minor children; in any other cases it is no more than 50%.

Thus, deductions from wages comply with the standards specified in Article 137 of the Labor Code of the Russian Federation. The application procedure must be strictly followed to avoid debt and liability for its occurrence.

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

It should be emphasized that the employer has the right, but not the obligation, 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 an employee’s wages are established by the Labor Code in accordance with ILO Convention No. 95. Article 8 of the Convention provides that deductions from wages are permitted under the conditions and within the limits prescribed by national legislation or defined in collective agreements or decisions arbitration courts. Workers must be notified 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 commentary to Article 248).

4. Along with deductions carried out by order of the employer and aimed at repaying the employee’s debt, there are deductions made on the basis of federal laws. They are aimed at fulfilling the employee’s duties to the state or other persons. Current legislation establishes the possibility of deducting from wages taxes on personal income, administrative fines, fines as a criminal penalty, certain amounts (parts of wages) when serving a sentence in the form of correctional labor, amounts of money by court decision (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 established period - a month from the date of expiration of the period established for the return of the advance, repayment of debt, etc. Secondly, there is no disagreement with the employee regarding the grounds and amount 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 to be paid, as well as other technical errors (typos, clerical errors, etc.). Incorrect application of the relevant legal provisions does not constitute a counting error.

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

8. Amounts paid to an employee as vacation pay may be withheld in the event of his dismissal before the end of the working year for which the vacation was granted. The exception is the grounds for dismissal at the initiative of the employer, not related to the guilty behavior of the employee (clauses 1, 2, 4, part 1, article 81), and dismissal due to the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of relevant work (clause 8, part 1, article 77).

Theory of everything. Deduction from wages - the procedure for deductions according to the Labor Code of the Russian Federation Application for deduction from wages - sample

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

Another comment to Art. 137 Labor Code of the Russian Federation

Consultations and comments from lawyers on Article 137 of the Labor Code of the Russian Federation

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

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

salary deductions

Income tax after deduction from wages

Withholding of alimony from wages according to a writ of execution

Application for deduction from wages - sample

Order to withhold funds from wages

The maximum amount of deductions from wages under Article 138