How to calculate compensation for late payment of vacation pay

How to calculate compensation

If there is a violation of the deadline for paying vacation pay, prepare for a compensation payment. The minimum amount of compensation for late payment of vacation pay to an employee depends on (Article 236 of the Labor Code of the Russian Federation):

the amount of funds not paid on time;
number of days late with payment;
the current key rate of the Central Bank of the Russian Federation.

Calculate using the formula:

Where

O - the amount of vacation pay due;
KS is the key rate of the Central Bank of the Russian Federation, its value can be found on the official website of the Central Bank of Russia;
D - number of days overdue for payment.

Moreover, the amount of the employee’s vacation pay “in hand” is taken into account, that is, after withholding income tax. And the calculation of days of delay is carried out from the day following the day of the end of the payment period according to the law, to the day of the actual transfer (issue from the cash register) inclusive.

Failure to pay vacation pay on time: criminal prosecution

Criminal prosecution may be initiated against an employer who fails to pay vacation pay on time and in full if:

Vacation pay was paid in less than half, with a delay of more than 3 months (Clause 1 of Article 145.1 of the Criminal Code of the Russian Federation). And then sanctions may be applied to the manager of the employer in the form of:

imposing a fine of up to 120 thousand rubles;
a fine within the amount of the offender’s annual income;
prohibition from holding a leadership position for 1 year;
compulsory work for up to 2 years;
imprisonment up to 1 year.
a fine of 100–500 thousand rubles;
a fine equal to the income of the violator for 3 years;
compulsory work for up to 3 years (possibly with a ban on holding a position);
imprisonment for up to 3 years (also with a possible ban on holding office).

Vacation pay is not paid in full if the delay exceeds 2 months (Clause 2 of Article 145.1 of the Criminal Code of the Russian Federation). In such cases, sanctions against a director or individual entrepreneur may be presented:

If these acts lead to grave consequences, we may be talking about more stringent sanctions (Clause 3 of Article 145.1 of the Criminal Code of the Russian Federation). This:

fine 200–500 thousand rubles;
a fine amount within the violator’s income for 1–3 years;
imprisonment for 2–5 years (with or without disqualification).

The considered administrative and criminal sanctions can be combined with each other. For example, a director may first delay vacation pay by committing an administrative violation (and receiving a fine), and after failing to pay them within 2 months, receive charges under the Criminal Code of the Russian Federation.

Sanctions are provided for failure to provide vacation to employees, and for the lack of a vacation schedule, and for non-compliance with it. Which ones exactly? Find out in the Ready-made solution from ConsultantPlus by receiving free trial access to the system.

Procedure for payment of compensation

The reasons for late payment of vacation pay may be:

deliberate delay;
lack of funds from the company;
if the employee submitted an application for unscheduled leave late;
the technical error;
change in the bank’s operating mode (if a salary project is being carried out), etc.

It doesn’t matter whose fault the delay occurred: the employer is obliged to compensate for it. If the employer refuses to pay compensation, the employee has the right to go to court.

To pay an employee compensation for late paid vacation pay, no statements are required. As a rule, the amount of compensation is insignificant, so a voluntary payment will confirm the integrity of the employer and the official.

What to do if payment is delayed?

There are no time limits on holding an employer accountable for violating the deadline for paying vacation pay. If the delay is allowed with the consent of the company’s management, it is not necessary to interrupt previously planned trips; all issues can be resolved on your first working day.

The difficult financial condition of the enterprise, the lack of desire to continue the employment relationship with the employee does not give the employer the right to delay payment. First, you need to personally find out the reasons for the non-payment from the director of the organization. If communication does not bring results, it is necessary to resolve the conflict with the help of supervisory authorities.

For late payments, an employee may receive compensation, which is calculated as the amount of debt multiplied by the refinancing rate of the Central Bank of Russia.

Delay, regardless of the reason for its occurrence, is every day after the deadline for payment of due funds.

Where can I complain if I am not paid on time?

Algorithm of actions in case of delay in payment of vacation pay:

Negotiations with management; if justice is not restored, then you should contact the first supervisory authority.
An appeal (complaint) to the Labor Inspectorate, most conflicts are resolved at the stage of inspection of specialists from this body.
Appeal to the prosecutor's office or court. If the order of the labor inspector is ignored by the employer, then the officials are called to account through the prosecutor's office or the court.

In the text of the lawsuit to the court, the employee describes the situation of violation of the provisions of Article 124 of the Labor Code of the Russian Federation. The court hearing is held within 1 month from the date of registration of the complaint.

If the court makes a decision that the rights and interests of a subordinate have been violated due to non-payment, the employer will receive an order to forcefully repay the debt during the vacation.

The court does not take into account the lack of funds in the organization, untimely registration of registers with the bank, electronic signatures for documents, and errors in payment orders. The supervisory authority adheres to the position of the injured party, the chance of making a decision to satisfy the legal requirements is very high.

If in this case, the employer refers to financial instability, the issue is resolved with the help of bailiffs (sale of property, seizure of company accounts).

These events force company directors to be more attentive to their responsibilities. Late payment of vacation pay, disrupted due to the fault of the employer, threatens to cause large-scale problems for the company.

In practice, most disputes about the payment of due funds for vacation are resolved at the stage of notifying the manager of the employee’s intention to apply to the Labor Inspectorate.

We also recommend reading: What to do if you haven’t paid your dismissal pay?

Samples of complaints in case of delay

Example of a complaint to the State Tax Inspectorate:

Example of a statement to the prosecutor's office:

Example of a lawsuit:

Taxation of compensation for delayed vacation pay

Is it necessary to withhold personal income tax from compensation for delayed payment of vacation pay? No no need. Compensation payments are not subject to income tax (clause 3 of Article 217 of the Tax Code of the Russian Federation, Letter of the Federal Tax Service dated 06/04/2013 No. ED-4-3/10209, Letter of the Ministry of Finance dated 01/23/2013 No. 03-04-05/4-54.

But the employer is obliged to pay insurance premiums to compensate for late payment of vacation pay, since the object of taxation of insurance premiums is all payments in favor of employees. (letters from the Ministry of Finance dated 03/06/2019 No. 03-15-05/14477, dated 09/24/2018 No. 03-15-05/68049.

And Letter of the Ministry of Finance dated October 31, 2011 No. 03-03-06/2/164 explains that for income tax purposes, compensation for untimely paid vacation pay cannot be taken into account as expenses, since it does not meet the conditions established by Art. 255 of the Tax Code of the Russian Federation and, accordingly, cannot be attributed to labor costs.

Important nuances

In addition to the three-day period given to the head of the company for the payment of vacation pay, holidays and weekends should be taken into account. If the day of transfer falls on a holiday, the employer is obliged to pay the amount in advance.

Labor legislation requires mandatory compliance with payment deadlines and prohibits the accrual of vacation pay in installments.

Actions of the organization's management related to the implementation of regulations should not lead to infringement of the rights of subordinates. If a company is experiencing financial difficulties, which prevents it from paying social leave benefits on time, then the director should contact the Social Insurance Fund. The fund will transfer the required amount, but the employer must pay for the first days from its own treasury.

If a company employee has not taken annual official leave for several years, responsibility for this lies entirely with the employer. It is he (the HR department of the enterprise) who is obliged to monitor the exercise by employees of the right to leave. In this situation, the legislation guarantees the employee compensation for vacation money in full.

Let's sum it up

Compensation for delayed payment of vacation pay is calculated as the amount not paid on time, multiplied by 1/150 of the key rate of the Central Bank of the Russian Federation for each day of delay.
The days must be counted from the date following the last day of payment of vacation pay in accordance with the Labor Code of the Russian Federation.
Compensation for delayed payment is not subject to income tax, but insurance premiums are charged on it.
It is unlawful to include compensation payments for delays in income tax expenses.

When should vacation pay be paid if an employee goes on vacation?

Article 136 of the Labor Code of the Russian Federation, which regulates the timing and place of all payments due to an employee, states that the payment of vacation pay must be made at least three days in advance. At the same time, it is not reported which days the legislator has in mind, calendar or working days.

The Ministry of Labor put an end to this issue, which indicated that the period should be calculated in calendar days. Therefore, this period will include weekends and holidays.

This condition must be taken into account by the employer, especially if the employee’s vacation will begin after holidays combined with weekends.

FAQ

Question 1. If the employer paid part of the vacation pay on time, but delayed part, then based on what amount will the compensation be calculated?

Answer. Compensation is calculated from the amount that was delayed. For example, an employee’s vacation pay is 15,000, it must be paid on 04/05/2018, but the employer transferred only 10,000 rubles to the employee during this period, and the vacationer received the remaining 5,000 only on 04/10/2018. In this case, compensation will be calculated based on 5,000 rubles and 5 overdue payments.

Question 2. Is the employer obliged to pay compensation for the delay in vacation pay if it was not his fault, for example, there was a malfunction in the bank or the cashier did not show up for work?

Answer. The employer must pay compensation regardless of the reason for the delay in payments.

How to file a complaint to the prosecutor's office?

A complaint to the prosecutor's office is prepared in a similar way. The document must indicate:

name of the prosecutor's office;
information about the applicant (full name, address, contacts);
information about the place of employment (name of organization, address);
information about the employment contract;
delay period and amount of debt;
requirement to conduct an inspection;
date and signature.

The application must be accompanied by documents from the employer regarding leave, salary slips, and other documents.

After the documents are accepted, a check is carried out. The event is given 30 days. Based on the results, a response is sent to the applicant about the measures taken.

How to file a complaint with the labor inspectorate?

If vacation pay is not paid, the employee can file a complaint with the labor inspectorate. The text of the document must include the following information:

name of the department;
information about the applicant (full name, contacts, address);
employer's name and address;
information about the employment contract;
amount of vacation pay;
payment delay period;
please check;
list of applications;
date and signature.

The complaint must be accompanied by an employment contract, a leave order, an extract from the personal account, and other evidence.

Documents are submitted in person through the labor inspectorate office. If the applicant is unable to visit the office, he has the right to use the assistance of a representative or send documents by mail.

If you need assistance in preparing documents for the labor inspection, we recommend contacting a qualified lawyer.

What are the penalties for employers for non-payment of wages in 2021?

penalties increase from 100 to 500 thousand rubles, although you can lose your income received over 3 years;
you will have to interrupt your profession for up to 3 years;
the same period is provided for forced labor;
persistent violators face 3 years of imprisonment plus disqualification for the same period, although the latter does not always happen;
grave consequences will lead to detention from two to five years with a similar disqualification, but the latter is not necessary.

the document is filled out arbitrarily, there is no special form provided yet;
the exact and full name of the company or organization is indicated, indicating the surname and initials of the director, chief accountant and employee responsible for salaries and their timely issuance;
the applicant himself writes not only his last name, but also the title of the position and length of service in this company;
the amount of salary and allowances is prescribed, taking into account compensation, days of delay and methods of payment, indicating a specific date.

Terms and features of payment of vacation benefits in accordance with the Labor Code of the Russian Federation

By multiplying the number of days of rest by average earnings, the amount of vacation pay is determined. To calculate average daily earnings, a calculation period of 12 months is taken and payments are made only for the time actually worked. Disability benefits and various social benefits are not taken into account.

If the third day is a weekend or non-working day, the payment must be made taking this into account, that is, 4 or 5 days in advance. If the payment is made not through a cash register, but by non-cash transfer to a bank card, you need to take into account the working hours of banks. You may have to make the transfer earlier than 3 days before the start date of your vacation.

Answers to common questions

Question No. 1 : Will there be financial liability if the delay in vacation pay occurs due to the revocation of the bank’s license?

Answer : All responsibility for employee benefits lies with the employer. Therefore, in case of late payments, in addition to the payment amounts, it is also necessary to calculate compensation for the delay. Also, workers have the right, if there is a delay of more than 15 days, to suspend work and demand compensation for moral damage. Therefore, it is advisable for an organization to provide for this option and make payments to employees on a timely basis.

Question No. 2 : When must compensation be paid for unused vacation upon dismissal of an employee?

Answer : If an employee is dismissed, all payments can be made on the last day of work. Compensation for vacation not taken off (all accumulated days for the entire period of work) in this case does not apply to vacation pay.

Fines for late payment of wages in 2021

Disciplinary. It stems from the provisions of civil legislation - Article No. 192 of the Civil Code of the Russian Federation. Such disciplinary liability is borne by both the employer himself and his responsible employees responsible for the delay.
Administrative. Established by the provisions of Article No. 5-27 of the Code of Administrative Offenses. Such liability comes with proven intent of the management of an organization that has allowed late payment of wages to its employees.
Criminal. It is used in exceptional cases when the employer maliciously evades paying wages to his employees, guided by selfish motives.

A delay in wage payments that occurred due to the fault of the enterprise management or one of the responsible employees is regarded as a direct failure to fulfill their labor duties. Such an offense entails the imposition on them of one of the types of disciplinary action provided for in Article No. 192 of the labor legislation:

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Labor disputes » Is it a violation of failure to pay vacation pay on time to an employee who took an emergency 1 day of vacation?

The employee took an emergency 1 day of vacation; vacation pay was not paid on time.

Question. Is this a violation?

Lawyer's answer.

In this case, failure to pay vacation pay within the period provided for in part nine of Article 136 of the Labor Code of the Russian Federation (no later than three days before the start of the vacation) is a violation.

The employer, who, at the request of the employee, provided the latter with annual basic paid leave from the next day, and therefore vacation pay was not paid to the employee three calendar days before the start of the vacation, must additionally pay the employee monetary compensation for late payment of vacation pay in the manner prescribed by Art. 236 of the Labor Code of the Russian Federation. In addition, the employing organization and the director (official) may be brought to administrative liability under Part 6 of Art. 5.27 of the Code of the Russian Federation on Administrative Offences.

Paid leave must be provided to the employee annually (Article 122 of the Labor Code of the Russian Federation). The order of provision of paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Art. 372 of the Labor Code of the Russian Federation for the adoption of local regulations (Article 123 of the Labor Code of the Russian Federation). Leave for the second and subsequent years of work can be granted at any time of the working year in accordance with the order of provision of annual paid leave established by a given employer (Article 122 of the Labor Code of the Russian Federation).

It seems that, at the personal request of the employee, the employer has the right to postpone the employee’s annual basic paid leave, despite the approved vacation schedule. In this case, it is necessary to comply with the requirements of Art. 136 of the Labor Code of the Russian Federation, according to which payment for vacation is made no later than three days before its start. If the employee indicated in his application that he was asking for leave from the next day, and the director agreed and signed this application, and the accountant does not have time to accrue and pay vacation pay within the period established by the Labor Code of the Russian Federation, then this is a violation of current legislation.

If the employer violates the established deadline for vacation pay, the employer is obliged to pay the amount of vacation pay with the payment of interest (monetary compensation) in the amount of not less than one hundred and fiftieth of the key rate of the Bank of Russia in force at that time of the amounts not paid on time for each day of delay starting from the next day after the established payment period up to and including the day of actual settlement. In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time.

The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault (Article 236 of the Labor Code of the Russian Federation).

Thus, the accountant needs to bring to the attention of the head of the organization that if an employee is granted unscheduled leave at his request from the next day, then it is necessary to pay the employee vacation pay, and interest will be charged on them for late payment. In addition, administrative liability provided for in Part 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

{Question: ...The employee is granted leave the next day after submitting the application. What is the liability for non-payment of vacation pay 3 days before the start of the vacation? (Expert Consultation, 2017) {ConsultantPlus}}

Question: An employee urgently went on vacation for family reasons, and the employer did not have time to pay him vacation pay three days before the start of the vacation, but the employee did not insist on this. Will the employer face liability in the event of an audit for untimely paid vacation pay? (“EZh-Lawyer”, 2021, N 4) {ConsultantPlus}

Question: When should an organization pay vacation pay to an employee: no later than three calendar or working days before the start of the vacation? (Expert Consultation, 2016) {ConsultantPlus}

Question: ...The employee was not notified in due time about the start of the vacation, and he was not paid vacation pay. The employee wants to use vacation and is not against receiving vacation pay on the first working day after vacation. Is it possible to provide vacation according to schedule? Is the employer liable under Art. 236 Labor Code of the Russian Federation? (Expert Consultation, 2016) {ConsultantPlus}

Typical situation: When should vacation pay be paid and what will happen for violating this deadline? (Glavnaya Kniga Publishing House, 2017) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, March 2017.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE ().

Employees' rights to leave

An employee has a number of rights related to vacation, which the employer must not violate. These include the following rights:

for annual paid leave for the entire period worked - must be at least 28 days;
to divide the vacation period into parts;
to work on rest days if it is necessary to complete unfinished business;
to pay for days off.

You should know! If the money is not transferred on time, the employee is paid a late fee.