What are the consequences for an employer of delaying wages by 1 day (month) in 2021?

Salary payment terms

The timing of the payment of wages is regulated by Article 136 of the Labor Code of the Russian Federation, according to which it is paid:

• By issuing cash or transferring money to a person’s account.
• At least every 15 days, respectively, at least twice a month.
• Wages for a particular month must be issued to the worker no later than 15 days after the end of the month.
• Salary amounts are paid personally to the person (transferred to his account), unless otherwise provided by law.

All other issues related to wages can be decided by the head of the company at his own discretion, provided that he does not violate the above rules. Thus, the employer has the responsibility to:

• Determining the place for issuing funds.
• Determining the frequency of issuance (payments can be made more often than twice, for example, every week).
• Determining specific dates for the employee to receive advance payments and wages.

One of the common mistakes made by employers is to set a period rather than a specific date of issue. For example, wages will be issued from the 5th to the 10th. This is incorrect, the above article says that a specific date for the payment of salaries must be determined.

How should salaries be paid?

According to Art. 136 and 140 of the Labor Code of the Russian Federation, salaries are paid at least every half month. At the same time, it is also mandatory to issue a pay slip, the form of which is approved by the employer. It is noted there:

• salary elements that are due to the worker for the appropriate time;
• other accrued to the worker (compensation for the employer’s violation of deadlines for paying wages, vacation pay, dismissal payments, other payments);
• deductions with their amount and reasons;
• total payment amount.

The specific date of payment is stipulated by the internal labor regulations, collective or employment agreement. It may be distant from the end of the period that is paid by a maximum of 15 calendar days.

If the date coincides with a weekend or non-working holiday, wages are paid the day before.

Vacation pay is paid at least three working days before the start of the vacation.

How to determine the payday and delay period

The Labor Code of the Russian Federation indicates that if the day designated as the date of transfer of advance payment or wages falls on a weekend, then the issuance of funds is carried out on the last day of work before it.

The table below shows several situations when you need to pay wages in advance and how this can affect the delay period.

Paying less than minimum wage

According to the position of the Constitutional Court of the Russian Federation, the minimum wage must be provided to all citizens working under an employment contract, i.e. is a general guarantee provided to employees regardless of the location in which the work activity is carried out.

As we have already noted, the minimum wage is established simultaneously throughout the entire territory of the Russian Federation and cannot be lower than the subsistence level of the working population (Article 133 of the Labor Code of the Russian Federation).

From the materials of one case it follows that the amount of workers' salaries paid monthly was not made in full and did not include payments of the regional coefficient and bonuses for work experience in the Republic of Khakassia (Decision of the Supreme Court of the Republic of Khakassia dated October 29, 2019 No. 7R-192 /2019). The punishment for the manager was also imposed within the sanction of Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

Compensation for delayed wages

Article 236 of the Labor Code of the Russian Federation establishes the following rules for the payment of compensation amounts for late wages:

• The amount of compensation must be no less than 1/150 of the approved key rate.
• Compensation is calculated on the overdue amount, and not on the entire salary;
• Compensation is issued immediately, along with your salary.

The legislation regulates only the minimum threshold of compensation; an organization can increase it by stipulating this in local regulations.

The employer needs not only to pay compensation to the employee, but also to accrue all insurance premiums, as stated in the letter of the Ministry of Labor dated April 28, 2016, No. 17-3/OOG-692.

Formula and example of calculating compensation for 1 day salary delay

At May LLC, salary payments are set on the 25th of the current month and the 10th of the next month.

The accounting department should have transferred the sales manager A.A. Korolev advance payment in the amount of 20,000 rubles. She did this not on the 25th, but on the 26th. Accordingly, the delay is 1 day.

Calculation of the amount of compensation for delay:

Compensation amount = advance amount*1/150*key rate valid on the day of settlement*number of days of delay

Compensation amount = 20,000*1/150*7.25% *1 = 9.6 rubles.

Personal income tax is not withheld from the amount of compensation, this follows from the Letter of the Federal Tax Service dated June 4, 2013 No. ED-4-3/10209.

The amount of the salary has not been proven - interest for its delay is calculated from the minimum amount

If the employer violates the established deadline for paying wages, vacation pay, dismissal payments and (or) other payments, the employer is obliged to pay them with interest (monetary compensation). Such interest is calculated in an amount not lower than 1/150 of the key rate of the Central Bank of the Russian Federation in effect at that time on the amounts not paid on time for each day of delay. If the employee fails to prove the real amount of salary, the amount of compensation is calculated based on the regional minimum.

In relation to previous labor disputes, the amount of compensation was 9,457 rubles 77 kopecks, based on the salary - 17,561 rubles (Appeal ruling of the Moscow City Court dated 06.06.2019 No. 33-17011/2019 and dated 12.03.2019 No. 33- 6941/2019).

When must an employer pay compensation amounts?

The employer must provide compensation immediately with wages, reflecting it as a separate line on the payslip.

Example: May LLC was supposed to issue wages on the 5th, but delayed them by 1 day, and they were paid only on the 6th. In this case, compensation must be calculated and paid along with earnings on the 6th.

When should compensation be given for an overdue advance, when paying an advance or salary? Payment of compensation amounts for delayed advance payments is made on the day it is transferred to employees, and is not postponed until the date of wages.

What to do if the company management refuses to pay compensation

In most cases, the employer does not charge compensation for late wages by default, especially if the delay was only one day. The amount to be paid with such a delay will be very small, but in this case, workers must still defend their rights.

To begin with, you can contact the management of the enterprise in writing with a request to accrue the compensation due. The application is drawn up in free form.

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If management refuses to calculate compensation, the employee can appeal the violation of his rights to the relevant organizations.

In the table below you can see where a person whose rights have been violated can turn:

Responsibility of the enterprise for delays in wages and non-payment of compensation

An administrative penalty may also be imposed on the employer for delaying wages. As well as for refusal to voluntarily accrue compensation for late payments. There is no separate article in the Code of Administrative Offenses of the Russian Federation for delayed payments, therefore the punishment is imposed in accordance with paragraph 6 of Article 5.27.

In this situation, the penalty is:

• From 1 thousand to 5 thousand rubles for individuals who are individual entrepreneurs;
• From 10 thousand to 20 thousand rubles for responsible employees of the company;
• From 30 thousand to 50 thousand rubles in relation to a legal entity.

This administrative penalty can be imposed on the employer even if the salary is delayed by 1 day.

If wages are delayed, the employer is obliged to pay compensation to employees, even if the delay is only one day. Compensation must be accrued by the employer on a voluntary basis; moreover, he must inform employees that they are entitled to compensation. As a rule, this information is included on payslips.

Administrative responsibility

The fine for late payment of wages can also be administrative (under Parts 6 and 7 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation), if there are no signs of a criminal act indicated in the previous section. According to Part 6 (under which a warning is possible instead of a fine), the fine will be for:

• DL (for example, accountant) - 10,000–20,000 rubles. In case of repeated non-payment or incomplete payment of wages on time or if its amount is less than the minimum wage - 20,000–30,000 or disqualification for one to three years;
• IP - 1000-5000 rubles, for repeated violation - 10,000-30,000;
• legal entities - 30,000-50,000 rubles, second time - 50,000-100,000;

Instructions for collecting wages

Delay of wages by the employer is prohibited by the labor legislation of the Russian Federation. If the boss refuses to pay earned money, the employee has the right to file a claim. If the employer fails to act, after receiving an official request to transfer wages, you can write a complaint to the Labor Inspectorate or file a claim in court.

Preparing a claim

The employer is obliged to pay wages on the day agreed upon in the employment contract. In case of dismissal of an employee, funds are issued on the last day of work, or on the first day of his application for salary.

The Labor Code of the Russian Federation allows termination of the performance of labor functions if the employer refuses to pay wages for two weeks, or more precisely 15 working days.

Asking your boss to give you a salary is useless. It is better to act in an official manner. The first stage is drawing up a claim addressed to the head of the enterprise.

There is no single claim form. However, the document should include key points:

• Full name of the employee, his position, contact telephone number and residential address;
• company name;
• Full name of the manager and his position;
• the name of the document itself (in our case, this is a claim for non-payment of wages);
• essence of the claim;
• requirements;
• consequences of failure to comply with the requirements described in the claim;
• date and signature of the applicant.

It is important to describe the problem in as much detail as possible. Explain at what point the employee did not receive wages, the approximate amount, as well as the consequences for the employee due to non-receipt of income.

For example, if an employee is obliged to repay a loan, then it is worth indicating the delay in fulfilling loan obligations, as well as the amount of accrued penalties and the total amount of accumulated debt.

Describe the requirements. Ask to pay not only wages, but also compensation required by law.

Submitting a complaint to the employer

A claim to the head of the enterprise can be sent in three ways:

• personally into the hands of the employer, or through his secretary;
• by Russian Post by registered mail.

In the first case, it is necessary to confirm receipt of the claim by affixing the date and signature of the receiving person. If the employee decides to send the document by mail, then he should order it. Confirmation of receipt of the claim by the manager will be a notification of delivery of the envelope.

Important!

The claim is drawn up in two copies. One is given to the manager, the second remains with the employee.

Complaint to the Labor Inspectorate

A complaint should be sent to the labor inspectorate if management fails to act after receiving a complaint.

There are no special rules for drawing up a document at the legislative level. However, for a fair assessment of the employee’s problem by department employees, the complaint is drawn up in duplicate, and the following information is indicated in it:

• full name of the department and its location;
• if possible, you can indicate the name of the official authorized to accept such documents;
• The applicant's full name, home address, telephone number, place of work and position;
• name of the enterprise where the employee is employed, address;
• Full name of the manager, his position;
• name of the document (complaint);
• the essence of the problem with a consistent and detailed description of it.
• requirements for the employer;
• request to the inspectorate employee to conduct an inspection of the enterprise;
• date of filing the complaint and signature of the applicant.

Important!

The labor inspectorate will refuse to consider a complaint if the document does not indicate the applicant’s full name and contact information.

The complaint is submitted personally to an employee of the department. In this case, the receiving party will mark the registration of the document.

A claim against an employer to the labor inspectorate can be sent by Russian Post by registered mail with notification. Confirmation of receipt of the envelope by the department will be the form given to the sender in case of delivery of the letter.

Going to court

If the measures taken by the employee against the manager did not lead to results, and the company still refuses to pay wages, you can file a claim in court.

Important!

The judicial authority will reject the claim if the citizen did not try to resolve the conflict peacefully, that is, without trial, but by filing a claim or filing a complaint with the labor inspectorate.

Through the court, an employee can recover not only unpaid wages, but also compensation for moral damage.

You can contact the judicial authority three months after the date of the first delay in wages or partial payment.

Important!

A claim for recovery of wages is filed only in a district or city court. The magistrate does not have the right to consider such cases.

For filing a claim in a labor dispute, the employee does not pay a state fee, and the costs are subject to recovery from the employer, but only if the employee’s claims are recognized.

The statement of claim is drawn up taking into account the information required to be included in the document, in free form. Sent personally through the department office, or by registered mail with notification.

What to include in the statement of claim

There is no single sample statement of claim for recovery of wages. However, the applicant must include some information in it.

1. Fill out the header in the upper right part of the sheet. Here the name of the court, its location, the name of the plaintiff and defendant, indicating the place of residence, location and contact telephone numbers are indicated. Below is the amount of the claims, which includes the amount of unpaid wages, as well as compensation for moral damage.
2. In the middle of the page you must write the name of the document. In our case, this is a “Statement of Claim for the recovery of wages and the amount of compensation for moral damage.”
3. Next, the plaintiff describes the essence of the problem, starting with his full name, date of birth, place of work and position held. The main thing is to clearly and consistently describe your actions, as well as the manipulations performed by the employer.
4. After describing the problem, it is necessary to present demands to the employer, supporting them with a link to current legal regulations. Thus, the employee proves the legitimacy of his claim.
5. The documents attached to the claim are listed below, dated and signed.

The claim is drawn up in triplicate. One remains with the plaintiff, the second is sent to the court, and the third is sent to the defendant.

Measures of employer liability for delayed wages

If the employer refuses to pay wages or pays them incompletely, the employee has the right to file a complaint with the labor inspectorate and the court.

If the enterprise is found guilty, management will be punished. Its type directly depends on the severity of the offense. At the legislative level, three types of employer liability for non-payment of wages are approved: material, criminal and administrative.

Administrative punishment

The employer will incur administrative punishment if it violates the terms of payment of wages. Types of penalties are approved at the legislative level.

Important!

Administrative punishment will follow only if the employer is officially found guilty of violating the terms of payment of wages.

Table of fines in 2021

The amounts of fines are relevant for 2021 - 2021. Their change is possible only if the Government of the Russian Federation issues regulatory documentation regulating the amendment to the code.

Important!

If the employer refuses to pay the fine, enforcement proceedings may be initiated against him.

Material liability

Based on the Labor Code of the Russian Federation, the employer is obliged to pay compensation for delayed wages, the amount of which depends on the employee’s average monthly salary, the Central Bank refinancing rate and the amount of delay.

In accordance with labor legislation, the employer is obliged to independently, without application, calculate and pay the amount of compensation.

Important!

The compensation amount for delayed payment of wages is due to the employee, regardless of the reasons for the delay in transferring funds.

Formation of wages

From the point of view of the law, wages are the measure of remuneration of an employee for work performed. The basis for issuing wages is an employment contract concluded between the employee and the employer, which contains the working conditions, as well as the amount of salary, the procedure for calculating additional payments (for example, overtime, bonus payments). In accordance with the Labor Code of the Russian Federation, an employee’s salary is divided into 3 parts:

1. Salary is a fixed part of the salary, which is calculated taking into account the days worked in the month, based on the working day report card.
2. Compensation payments - supplements and bonuses that compensate for the peculiarities of working conditions (northern allowances, for overtime work, pay for weekends and holidays, etc.).
3. Incentive payments are a motivational component aimed at increasing labor productivity and compensating for an increase in the efficiency of the employee in performing his or her job duties. Incentive payments are divided into:

• constants, depending on the work performed;
• one-time – one-time payments for holidays, 13th salary, others.

The procedure for issuing and the amount of permanent incentive payments are usually noted in the annex to the employment contract. The employer does not have the right to independently change the amount of this payment down or completely exclude it from the salary.

Important! Any unlawful change in the permanent part of the salary that violates the legitimate interests of the employee can be challenged in court.

In turn, we note that the one-time part of the payment is a manifestation of the employer’s goodwill, and, accordingly, if it is excluded from the salary, it will be impossible to restore the one-time payment even in court.