What to do if your salary is below the minimum wage

Every work deserves a decent reward. The state has provided a minimum limit guaranteed to workers, which employers can set during a regular full-time employment schedule - the so-called minimum wage. Its dimensions are regularly reviewed and adjusted from time to time. Many social payments and various deductions, as well as taxes and fines, are calculated on the basis of the minimum wage. But what to do if the salary is below this minimum?

Let's consider in which situations this is possible and in which it is illegal, what liability an employer faces for violating the rights of employees, and what both parties should do.

Is it legal for a resigned employee, who for three years received wages below the regional minimum wage, to demand that he be paid additional wages to the minimum ?

Minimum wage may vary

The minimum wage for the monthly labor standard worked is set at the state level. Once a year it is reviewed and increased in proportion to the level of inflation. The “minimum wage” in 2021, adopted by Federal Law No. 421-FZ of December 28, 2017, is 9,489 rubles.

FOR YOUR INFORMATION! Compared to last year, the minimum wage increased by 1,689 rubles. – from the amount of 7800 rubles.

The wage below which the employer does not have the right to set wages set by the state is called the federal minimum wage (Article 133 of the Labor Code of the Russian Federation) .

Local authorities have the right to revise the minimum wage depending on the parameters of specific constituent entities of the Russian Federation, but only upward. This minimum wage is called regional . The largest “local” minimum wage is rightly set in the northern regions of the country, for example, in the Magadan region in 2021 it will range from 19,500 to 21,060 rubles, including compensation and incentive payments. This remuneration figure will be adopted if agreement is reached between the three interested parties:

regional authorities;
associations of trade unions;
local union of industrialists and entrepreneurs.

The adoption of a regional minimum wage means that all employers in the region are obliged by default to adhere to this minimum limit. But, unlike the federal minimum wage, employers have a choice: within a month they can refuse to recognize the increased value established in the region. To do this, you need to publish a reasoned refusal in the local media within this period. In such cases, they must adhere to the requirements regarding the federal minimum wage.

Question: The organization is located in an area equated to the regions of the Far North. Employees' wages must not be lower than the minimum wage (minimum wage). Should the regional coefficient and percentage bonus be included in the minimum wage? View answer

Comments: 2

Your comment (question) If you have questions about this article, you can tell us. Our team consists of only experienced experts and specialists with specialized education. We will try to help you in this topic:

Author of the article Irina Rusanova

Consultant, author Popovich Anna

Financial author Olga Pikhotskaya

890263******
05/09/2021 at 10:34 Salary 5304 rubles plus 25% other labor conditions, 30% seniority, 4% harmfulness, 5304 monthly bonus and for all this 15% Urals coefficient))) correct calculation????
Reply ↓ Anna Popovich
05/10/2021 at 12:22
Dear visitor, the regional coefficient in the Urals can be different - from 1.2 to 1.8. Depends on the area of residence.
Reply ↓

For which relationships is the minimum wage required?

Not every employer who employs other people is subject to minimum wage requirements. This government regulation guarantees a minimum limit for employees only when entering into an employment relationship. In civil cases, in which another form of contract is concluded, in particular, a contract for the provision of paid services, it is not necessary to comply with this requirement. In such relationships, payment is agreed upon by agreement; it may turn out to be lower than the minimum established by the power.

Question: The organization employs employees who receive additional payment for combining professions (positions). The established salaries for such workers are below the minimum wage, but the salary and additional payment for combining professions (positions) for a fully worked month are slightly higher than the minimum wage. Are payments made for combining professions (positions) included in wages in order to compare them with the minimum wage? View answer

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Marina Zhukova 09.13.2021 18:22
Comment: The cleaning company receives money from the customer from m2 and pays the employee for 4 hours. that is, 9400 rubles per 1000 m2. but according to the Decree of the State Labor Committee of December 29, 1990 No. 469, washing floors with an average clutter of 300 m2 takes 2 hours and 52 minutes. and the company puts 8 hours on the employee report card. The question is how should wages be calculated?
Answer
Maxim 09.20.2021 15:50
Comment Good afternoon! We find it difficult to answer your question; we recommend that you contact a specialized specialist with an accounting education.

Add a comment Cancel reply

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Minimum wage or subsistence minimum

These two indicators should not be confused. The law states that the minimum wage should not be lower than the subsistence level. But in practice these values have not yet become equal. Labor Code of the Russian Federation in Art. 421 says that they will gradually be reduced to one total amount, this will happen in several stages. Until this moment comes, the employer should focus exclusively on the minimum wage, which, unfortunately, is still somewhat lower than the subsistence level.

Legal salaries are below the minimum wage

So, according to the law, it is impossible to assign payment below the established minimum. But there are several situations when the amount received in hand may be below this limit:

work under a civil law contract (the employer is considered the customer, and the employee is the contractor);
during the month, the employee did not work the calculated standard hours due to illness, administrative leave or other reasons (the monthly standard of working time is not developed);
in addition to the small salary, the employee receives additional mandatory payments: bonuses, bonuses, additional payments, etc., which in total amount to the required amount;
special work schedules or remuneration systems (hourly, piecework, part-time - day or week);
part-time work (payment depending on hours worked).

IMPORTANT! When working part-time or on special schedules, it is necessary to conclude an additional agreement to the employment contract, which, among other conditions, stipulates payment for part-time work. Without written consent, the employer does not have the right to establish part-time working hours or send people on indefinite unpaid leave.

Judicial practice on this issue

For most citizens, the judiciary is a last resort when all other measures have been exhausted.

In this case, the citizen files a statement of claim with factual evidence of management’s guilt with a request to recover the lost amount of earnings, as well as with a demand to pay compensation for the delay in wages.

After considering the case, the judicial authority makes a decision. Compulsory measures are applied to the employer to satisfy the interests of the victims.

It is worth considering that you can go to court no later than 1 year from the date of settlement with workers established by the organization (Part 2 of Article 392 of the Labor Code of the Russian Federation).

Less than the minimum wage on hand

Sometimes it turns out that an employee receives less than the minimum wage, and this is legal. In this case, the salary includes the figure established by federal law. This may happen when:

the amount issued is reduced due to accrued personal income tax (the “dirty” salary corresponds to the minimum level, and a smaller amount is obtained by deducting 13%);
other mandatory deductions are deducted from the salary - the amount of the minimum wage issued can be reduced by insurance, membership dues to a trade union, etc.;
the employee has arrears in alimony payments (up to 70% of wages can be written off under a writ of execution).

General information

The concept of a living wage

The subsistence level is usually understood as the amount of money per person that he needs to finance his basic needs.

That is, this is the minimum cost of the subsistence basket, which includes food and non-food products, as well as the cost of services (utilities, transport costs, etc.).

The composition of the consumer basket is periodically reviewed (every five years). This indicator is set by the federation and local authorities, taking into account the living conditions in each region. This value is calculated quarterly for each category of citizens (able-bodied, pensioners, children).

Attention! Its value is used in determining the minimum wage, minimum amounts of benefits and pensions. The cost of living indicates the well-being of citizens and how effectively the state implements social policy in the country.

The cost of living in Russia

The cost of living is calculated based on existing prices for goods and services, taking into account established inflation rates. The formula for determining this value includes the norms of consumption of goods and basic services established

Rosstat price index, as well as the existing demand for this product among citizens. Initially, a federal calculation is made, and then local authorities form a local minimum based on it.

The cost of living is determined after a quarter. Therefore, the value currently in effect is that which was calculated based on data from the 3rd quarter of 2021.

The following federal values of this indicator can be distinguished:

for the working population - 11,310 rubles;
for a pensioner - 8846 rubles;
for minors - 10,302 rubles.

Attention! These values are all-Russian. Each subject sets its own values.

What should an employee do if the minimum wage is low?

First of all, carefully read the employment contract before officially applying for a job. This document must indicate wages and work hours, as well as clarify the nuances regarding additional charges and deductions. If the specified amount is less than the minimum wage, you should not get a job with such an unscrupulous employer.
If your salary suddenly turns out to be less than usual, ask the payroll department about the reason for the decrease. If the reason is legitimate (see above), the employer is within his rights.
If the employer has reduced the payment illegally (unilaterally), it is worth applying for protection of your rights to the labor inspectorate in the territorial affiliation of the employer or to the prosecutor's office. To do this, you will need to write a written statement, to which you will need to add written confirmation of the infringement of your rights regarding wages:
an extract from a salary card account;
written explanation from the employer (if he provided it), etc.

The regulatory authorities will initiate an inspection of the employer and issue an order to eliminate the identified violations.

Going to court is the last resort for all those unfairly offended. For such claims, you do not need to pay a state fee. If the court decision is in favor of the employee, the employer will be obliged to comply with it. In practice, most often the employee in these cases is forced to resign.

IMPORTANT! It makes sense to first contact management directly. It is better to do this in writing or in front of witnesses. Most often, employers prefer to resolve the issue amicably with employees who know their rights.

Where and how to complain about low wages?

If the wage is set below the minimum subsistence level (minimum wage), then the employee can file a complaint against the employer with the trade union, labor inspectorate, prosecutor's office or court.

Labour Inspectorate

The first regulatory body to which an employee should file a complaint about a small salary is the labor inspectorate. This body is precisely intended to monitor compliance with current labor legislation.

You can write the application directly to the inspectorate, submit it with your authorized representative, or use the mail. Upon application, the inspector must conduct an inspection of the company’s activities and, if necessary, issue an order to eliminate shortcomings. It is also within his competence to impose an administrative fine.

If the results of the inspection are unsatisfactory, you can complain to a higher inspection, or submit applications to the prosecutor's office or court.

Attention! It should be noted that the labor inspectorate cannot oblige the payment of funds - this can only be done as a result of legal proceedings.

Prosecutor's office

A body that has the right to receive complaints from employees regarding violations of labor laws and conduct inspections.

In order to fill out an application, you must contact the prosecutor's office in person and write it to the employee on duty, and also hand it over with your authorized representative who has a power of attorney, or send it by postal service.

Checks on complaints are carried out suddenly, without prior notification to the company. Based on the results, the employer may be given an order to eliminate violations, and in some cases, the inspection materials may be transferred to the judicial authorities.

What does a reduction in the minimum wage mean for an employer?

Responsibility for underestimating the minimum wage implies punishment under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Administrative liability provides for fines (1-5 thousand rubles for individual entrepreneurs, 30-50 thousand rubles for an organization, more for repeated violations) or even disqualification of officials. If the underpaid salary has not been paid for long, the employer may only receive a warning and an order to increase it.

Criminal liability may arise if it is discovered that the employer has embezzled legitimate money from employees. In this case, the fine may be up to 500 thousand rubles. for complete non-payment and up to 120 thousand rubles. – for partial non-payment of wages.

Illegally used alternative forms of employment, in addition to an employment contract, threaten the employer with a fine of up to 100 thousand rubles, and up to 200 in case of repeated violation.

How insurance premiums will change

Now individual entrepreneurs and companies included in the SME register can apply reduced tariffs for that part of the salary that exceeds the minimum wage. Entrepreneurs usually know whether their business is included in the SME register. But just in case, you can check this by entering the company name or TIN in the search bar in the unified register of SMEs from the Federal Tax Service of Russia.

How to pay insurance premiums:

For the part of the salary above 12,792 rubles: 15%, where 10% for pension and 5% for health insurance.
For the part of the salary below 12,792 rubles: 30%, where 22% is for pension insurance, 5.1% for medical care and another 2.9% for social insurance.

Yana Ilgina, head of the financial department of SPAS Legal Company LLC

In 2021, contributions at a rate of 30% will have to be paid on the amount of 12,792 rubles (instead of 12,130 rubles in 2021). As a result, the amount of insurance premiums paid by companies applying the reduced tariff will increase in 2021. The amount of paid insurance premiums will also increase by the amount of the increase in wages to the new minimum value.

What should an employer do if the salary is below the minimum wage?

If the employer wants to comply with the law, then when paying an employee below the minimum wage, he needs to equalize these figures. You can do this in different ways:

Recalculation. It is necessary to first analyze salary accruals for underpaid allowances. Sometimes the indicator changes due to length of service and other unaccounted for criteria, and the salary becomes higher than the previously established value.
Accrual of additional amount. This is done by signing an additional agreement to the employment contract and issuing a special order. If the minimum wage increased after the conclusion of such an agreement. The law does not have retroactive force - accruals are made for the minimum wage current at the time of signing.
Transfer of an employee to another schedule. With the consent of the employee, you can transfer him to part-time work or set him up to work part-time or a week. You can also conclude a civil contract with him instead of an employment contract. The consent of the parties must be secured by an additional agreement or a new contract.