Delayed wages, dismissal and overtime: how to defend your rights at work

What to do if your employer delays your salary

The employer is obliged to pay wages at least twice a month. And the employment or collective agreement must specify a specific date on which salaries should be paid. If the employer delays payments, the employee has several options:

1. Don't work.

If the employer delays wages for more than 15 days, the employee has the right to suspend work for the entire period until the delayed amount is paid. But you must notify your management about this in writing.

During this “non-working” period, the employee will also be paid a salary based on his average income. In addition, the employee may demand to pay him a penalty or interest for delaying the money.

Important: if partial payment has been received from the employer, this is not a reason to go to work. But if the employer has sent written notice that he is ready to pay wages on the day the employee returns to work, then the employee is obliged to leave the next day after receiving confirmation.

The law also specifies categories of workers who do not have the right to suspend work. These include:

• military, rescuers, disaster relief workers, law enforcement agencies;
• civil servants;
• workers in organizations that service hazardous types of production or equipment;
• workers who are associated with ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency medical care stations);
• everything if a martial law or state of emergency is introduced.

2. Complain.

An employee can file a complaint with the State Labor Inspectorate (SIT), the prosecutor's office or law enforcement agencies. These authorities will conduct an inspection and decide how to punish the employer: he may face administrative or even criminal liability.

3. Go to court.

You can file a claim against your employer in court.

Scroll through the slider to read the full text of the statement.

In the statement of claim, you can ask to recover unpaid wages and monetary compensation from the employer (this must be indicated in the claim).

The amount of compensation must be no less than 1/150 of the current key rate of the Central Bank of the amounts not paid on time for each day of delay. It is counted from the next day after the salary is due to be paid, up to and including the day of actual payment. An online calculator for calculating compensation can be found, for example, here.

When going to court, you do not need to pay a state fee. And the employee also has the right to determine jurisdiction (at the place of residence of the plaintiff (employee) or at the legal address of the defendant (organization)).

Employer's liability

Delays in wages after dismissal threaten the employer with several types of liability:

1. Material (Article 236 of the Labor Code of the Russian Federation): a fine of no less than 1/150 of the rate of the Central Bank of the Russian Federation for each day of delay.
2. Administrative (Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation), if there are no signs of a criminal offense in case of delay in payment of compensation upon dismissal: fine for an official - up to 20,000 rubles; for individual entrepreneurs – up to 5,000 rubles; for a legal entity – up to 50,000 rubles.
3. Criminal (Article 145.1 of the Criminal Code of the Russian Federation), if the delay in salary after dismissal is the fault of the manager, there is personal interest and the money is not transferred for more than three months: a fine of up to 120,000 rubles. or in the amount of earnings up to 12 months; forced labor for up to two years; imprisonment up to one year; deprivation of the right to engage in certain activities or hold specific positions for a period of up to one year.

Note: criminal liability of the employer for failure to pay upon dismissal usually occurs in the most difficult cases, when guilt and personal interest are 100% obvious. Usually they are brought under the Code of Administrative Offenses of the Russian Federation.

Unlawful dismissal - how to challenge and where to go

Work upon dismissal - procedure and features

What to do if an employer forces an employee to write a letter of resignation

To resign of your own free will, you need to write a written statement (Article 80 of the Labor Code of the Russian Federation). If there is no such statement, then the employer cannot issue an order and terminate the employment contract.

If a reduction is coming in the company and the employee agrees to sign a resignation letter of his own free will, then he will not be able to receive severance pay (guarantees established by Article 178 of the Labor Code of the Russian Federation).

See how the payouts differ in both cases:

*To receive a second average monthly salary, an employee must contact the employer with an application and work record book - if he has not found a job within 2 months after dismissal.

**To receive the third average monthly salary, the employee must contact the employment service within two weeks after dismissal. If he does not find a job within three months after dismissal, then, based on the decision of the employment center, the employer will pay benefits.

Read on the topic: How to join the labor exchange and get the most out of unemployment

Therefore, if an employer reduces staff and requires a statement to be written at his own request or by agreement of the parties, the employee can do this in exchange for payment of at least three average monthly earnings. Otherwise, it is unprofitable to sign such documents - demand an official reduction.

If the employer forces you to write a letter of resignation of your own free will without any payments, then the employee can file a complaint with the State Labor Inspectorate. This can be done online by filling out a form on the special website of Rostrud.

If an employee has already been illegally fired, then he has the right to challenge this in court within one month. To do this, you need to draw up a statement of claim in court (there is no need to pay state duty), attach copies of the following documents to the statement of claim: employment contract, dismissal order, evidence that the employee had no desire to quit (for example, because he supports children, pays mortgage or loans, sole breadwinner), and the employer “forced” him to write a statement.

What should an employee do if wages are not paid: an alternative method

Are you not getting paid? Try to resort to another procedure for influencing the employer provided for by law - do not go to work. According to Art. 142 of the Labor Code of the Russian Federation, if wages are delayed for more than 15 days, the employee has the right to suspend work. Perhaps such forced inaction of the workforce will prompt the employer to quickly raise funds, and further trips to the authorities will not be necessary.

The mechanism for legal suspension of work is prescribed in Art. 142 Labor Code of the Russian Federation. The employee is required to do only one thing - notify the employer in writing. See below for what such a notification might look like:

From the date of filing such a notice, the employee may not appear at his workplace until the employer notifies him in writing of his readiness to repay the salary debt. During forced absence, the employee retains his average earnings.

It is necessary to take into account this nuance - the law does not allow certain categories of workers to suspend work if wages are not paid. And in certain cases, suspension of work is not permissible at all:

If, according to the law, you do not have the right to suspend work due to delayed wages or this measure does not have the desired effect on the employer, try another out-of-court method of collecting wage debt.

Can pregnant employees be fired?

Pregnant women cannot be fired at the initiative of the employer. But there is one exception: the liquidation of an organization. In such a situation, the manager can fire the pregnant woman along with all employees.

If an employee signed a resignation agreement and then learned that she was pregnant, then she has the right to be reinstated in her position.

The law protects a pregnant employee, even if her employment contract has already been terminated. If a woman finds out about her situation after dismissal, she can be reinstated at work through the court. In this case, the court will make a positive decision in favor of the employee, despite the fact that the employer had no information about her pregnancy at the time of dismissal.

Where to complain in case of non-payment

You can protect your interests and violated rights by any non-prohibited means. The procedure depends on the choice of method to ensure that the employer repays the amounts due.

We'll tell you what you can do if you haven't paid not only your estimated wages, but also your wages (while you continue to work).

Self-defense and powers of commissions operating at the employer (CTS)

You can try to resolve the conflict on the spot by submitting a written complaint to the employer. The application must be submitted in person or sent by registered mail with notification of its delivery to the addressee.

It is advisable to leave confirmation of your request.

Prepare 2 copies of the application with the requirement to pay the amount of the debt by the specified date with the accrued penalty for late payment.

When contacting in person, the secretary registers incoming correspondence by marking your copy with the date of receipt and registration number.

If the manager ignores legal requirements, a commission created from representatives of the administration and the workforce to resolve disputes can provide assistance.

Currently, CTS has lost its significance and rarely operates in organizations. You can initiate its creation by contacting trade unions designed to defend the interests of workers.

If within 3 days the employer does not voluntarily comply with the decision made by the commission to pay the amounts due, the interested person receives a certificate.

Since the CTS certificate is equivalent to a writ of execution, it is used by bailiffs to force the collection of settlement and accrued penalties for late payments.

Contacting the territorial labor inspectorate

The norms of Art. 2 Federal Law No. 59 (latest current version with amendments and additions dated December 27, 2018), enshrines the right of citizens to contact government bodies authorized to make socially significant decisions.

The fulfillment by employers of guaranteed workers' rights is controlled by the state by the federal labor inspectorate. The supervisory authority performs its functions locally through territorial inspections.

Filing a complaint about non-payment of settlement pay upon dismissal:

• taken personally to the territorial body of Rostrud at the place of registration of the employer acting as a legal entity, or the actual location of the entrepreneur;
• sent by registered mail (it can be simple, but it will not be known when it was delivered and whether it even reached the addressee);
• sent via the Internet by filling out a specially designated form in the “online inspection” section on the official website of Rostrud.

The inspectorate is competent to conduct an unscheduled inspection of the employer by requesting the necessary documents or visiting the place of business. Upon confirmation of the specified facts of non-payment of wages:

• guilty officials will be held accountable;
• the employer will be issued an order setting a deadline for eliminating violations.

Sample:

Filing a complaint to the prosecutor's office

The prosecutor's office is another government body that can help protect interests and hold the employer accountable.

Having a wider range of powers, the prosecutor's office has the right to monitor the implementation of any laws in force in the country.

Upon application for non-payment upon dismissal of all or part of the funds due:

• a prosecutor's investigation is carried out;
• documents can be forwarded to the territorial inspection that controls the employer to take effective measures to eliminate violations.

An application, similar to an application to the inspectorate, is written arbitrarily. You just need to follow the basic rules of business writing.

Unacceptable:

• use of obscene language;
• insult, threats against officials (or their relatives).

Sample:

Going to court

Any individual conflicts are resolved in court. To file a claim, it is not necessary to present evidence of pre-trial settlement of the dispute or contact the supervisory authorities.

The application is drawn up taking into account the requirements for content and form. As a rule, 3 copies are prepared:

• for court;
• an employer who is a defendant in legal proceedings;
• one copy remains with the plaintiff.

In contrast to appealing violations of legal rights to supervisory authorities, where there is no need to provide evidence of these facts, since they will be verified by a labor inspector or prosecutor when drawing up a statement of claim:

• it is necessary to indicate the rules of law violated by the employer;
• justify the requirements presented;
• attach documents confirming the legal relationship with the employer (their termination) and certificates of arrears in payments.

Sample:

What to do if an employer forces a pregnant employee to resign?

The law does not prohibit dismissing women in positions of their own free will, but it is impossible to force a person to sign a resignation letter.

If an employer threatens, insults or forces a pregnant woman to resign of her own free will, then it is worth recording all the threats (recording conversations and phone calls, saving SMS alerts, email correspondence or instant messenger messages) and writing a statement to the police and a complaint to the State Tax Inspectorate (you can do this online ).

Dismissing a pregnant woman without her consent and in the absence of grounds, when this is permitted - for example, during the liquidation of an organization, the expiration of an employment contract, or by agreement of the parties - is illegal. She has the right to seek judicial protection.

Are wages delayed or not paid? Contact the prosecutor's office

Another authority where you can turn if your salary is delayed is the prosecutor’s office, a body that oversees compliance with legislation, rights and freedoms of citizens on behalf of the state.

Here you will also need to fill out an application. Its composition and form will be advised by the prosecutor on duty, to whom you will be referred when visiting the prosecutor's office. The application is written addressed to the chief prosecutor and must contain the following information:

The content of the application may look like this:

The prosecutor's office independently verifies the facts stated in the application or forwards it to the labor inspectorate.

Evidence base

The advantages of contacting supervisory authorities (prosecutor's office or territorial labor inspectorate) with a request to provide assistance in protecting labor rights and receiving the required settlement payments include:

• it is not necessary to present any documents confirming the accuracy of the specified facts of non-payment of wages and other amounts upon dismissal, since they will request documents for verification from the employer on their own;
• there is no need for the personal presence of the interested person when carrying out control activities;
• within a month from the date of application, the applicant will receive a substantiated response.

If conflicts are resolved through court, the plaintiff must provide all evidence of the validity of his claims.

The following can be submitted as documents confirming violation of guaranteed rights:

• a copy of the contract with the employer or work record book;
• copies of written orders, from which it is clear that the person was hired and the employment relationship was terminated (or extracts from orders);
• a certificate from the accounting department about the amount of official salary (or tariff rate):
• a certificate of the amount of debt at the time of filing the claim.

If the employer does not issue orders and certificates at the request of the dismissed employee, when filing a claim, you must apply for the documents necessary to consider the dispute.

Some features

Accounting employees cannot always make payments on the last working day - for example, if an employee on the day of termination of the employment contract was on vacation during a shift schedule or was sick: when is salary paid upon dismissal in such cases?

Let’s say bus driver Petrov works every three days. He worked on September 12, and quit on the 13th. His last working day is the 12th, and the day of termination of his employment relationship is the 13th, Friday.

The money earned must be paid to him no later than the day following the presentation of the request for payment. In our example, the driver must be paid in full on Friday the 13th.

If disagreements arise with the HR department and accounting department, you can make an appeal addressed to the director. The law does not say in what form it is necessary to demand hard earned money and how to receive a salary upon dismissal. But lawyers recommend applying in writing, indicating all the details and reasons for absence from work on the day of termination of the employment contract. You must keep a copy of the application with a note on acceptance of the document for yourself: in the event of a controversial situation, this will confirm the fact of filing a demand to pay the money.

One more point that should not be forgotten. The employee may disagree with the amount calculated by the accounting department and demand that the salary be recalculated after dismissal. In this case, the payment of the settlement upon termination of the employment relationship is carried out within the limits of the undisputed amount. Who is right and who is wrong will become clear from further proceedings with the participation of GIT inspectors or the court.

Payments upon dismissal due to reduction of staff or position

If an employee is dismissed due to a reduction in staff or position, the final payment is made in the same way as in the case of liquidation of the company. It must be remembered that the employer is obliged not only to notify the employee of the layoff, but also to provide him with a choice of suitable vacancies available in the organization.

In addition, the employer must take into account that some categories of employees cannot be dismissed due to staff reduction, for example, pregnant employees, women with children under 3 years of age, single mothers with children under 14 years of age, an employee on vacation or sick leave (Article 81 Labor Code of the Russian Federation).

Example of calculating severance pay

Incoming data:

• employee Ivanov V.K. salary accrued for the previous year - 253,800 rubles;
• total working days in the period - 247 days;
• the number of working days during the vacation period is 20 days.

We calculate the average daily earnings:

247 - 20 = 227 - days worked

253,800 / 227 = 1,118.06 rubles. - average daily earnings

We calculate benefits for 3 months:

1,118.06 * 20 days = 22,361.20 rub. — severance pay for 1 month

1,118.06 * 21 days = 23,479.26 rub. - average monthly earnings for 2 months

1,118.06 * 22 days = 25,597.32 rub. - average monthly earnings for 3 months

Severance pay and average monthly earnings are not subject to personal income tax, since they relate to compensation payments. However, this rule applies only if payments do not exceed 3 times the average monthly salary (for regions of the Far North, 6 times the average monthly salary). Otherwise, personal income tax must be withheld and transferred from the excess amount.

Insurance contributions for severance pay and average monthly earnings are calculated in the same manner as when calculating personal income tax, that is, taking into account the limit established by law.

Important! Although compensation for leave upon dismissal is called compensation, personal income tax must be withheld from it, as well as insurance premiums must be charged.

An example of calculating the final amount of payments upon dismissal at one's own request

Incoming data:

• employee Ivanov V.K. resigns on September 13;
• total unpaid days - 10 days;
• the employee's salary is 20,000 rubles;
• bonus for length of service - 30%;
• in the region there is a regional coefficient of 1.15;
• The period for calculating vacation pay is from 01.07. until 31.06.;
• for the period 2019-2020, vacation was not used;
• average daily earnings - 975.61 rubles;
• The employee pays alimony in the amount of 25%.

We calculate wages:

20,000 / 21 * 10 = 9,523.81 rubles. - days worked

9,523.81 * 30% = 2,857.14 rubles. - bonus for experience

(9,523.81 + 2,857.14) * 1.15 = 14,238.09 rub. - salary taking into account the Republic of Kazakhstan

We calculate compensation for unused vacation:

from 01.07. to 13.09. The employee is entitled to compensation for 4.66 days.

4.66 * 975.61 = 4,546.34 rubles.

We calculate the total amount of accrued salary:

14,238.09 + 4,546.34 = 18,784.43 rubles.

We withhold personal income tax:

18,784.43 * 13% = 2,442 rubles.

We withhold alimony:

(18,784.43 - 2,442) * 25% = 4,085.61 rub.

We pay the employee the final payment:

18,784.43 - 2,442 - 4,085.61 = 12,256.82 rubles.