Is it worth paying extra if the amount of vacation pay is below the minimum wage?

The situation is really difficult. You need to understand how the calculation and surcharge are made. What happens if you break the law?

First of all, you should turn to the regulatory framework. The following points should be highlighted here.

The employer is obliged to keep the employee his average earnings during the vacation period. In no case should it be lower.
The calculation is carried out in accordance with Article 139 of the Labor Code of the Russian Federation and other documentation. Accountants are very familiar with this procedure.
In addition, at the end of 2022, the Government of the Russian Federation approved that the average monthly calculated earnings should not be lower than the minimum wage.

Thus, during furlough, you cannot pay an employee a salary that is below the minimum wage. But the legislation in this regard is imperfect. In particular, it does not indicate the mechanism by which an accountant should act if the average salary is lower than the minimum wage.

At the same time, experts have prepared a number of recommendations. They will help you calculate the correct amount of vacation pay.

How is additional payment made to the minimum wage level?

In order to find out whether an additional payment needs to be made, you must first determine the employee’s average daily earnings. Everything is identical with the calculation of vacation pay. After this, the resulting figure is compared with the average daily minimum wage. If the first indicator is less, then an additional payment is required.

In order to correctly calculate the average daily earnings, you should focus on Resolution No. 922. In accordance with it, all wages received during the year are taken. It is divided by 12 (the number of months). The resulting value must be divided by 29.3 (the average number of days per year). This formula is recommended by labor legislation. It takes into account that during the year the employee had 14 holiday days off. That is why the figure is taken at 29.3. The same figure is taken to calculate the average daily salary for a particular month.

If the calculations show a result that is below the minimum wage, then an additional payment must be made. In order to justify additional costs, you can issue an accounting certificate.

Compensation for unused vacation upon dismissal, taking into account the minimum wage

In all cases, the average monthly earnings of an employee who has worked the entire standard working time during the billing period and fulfilled labor standards (job duties) cannot be less than the minimum wage established by federal law (clause 18 of the Regulations on the specifics of the procedure for calculating the average salary, approved by government decree RF dated December 24, 2007 No. 922).

If an employee’s average monthly earnings are below the minimum wage, but he has worked fully within normal working hours and fulfilled labor standards, compensation for unused vacation must be calculated based on the minimum wage.

Example 2. Calculation of compensation for unused vacation upon dismissal based on the minimum wage. The employee quits on February 2, 2022. She needs to pay compensation for 14 calendar days of unused annual paid leave. The billing period has been fully worked out. The employee's average monthly earnings were less than the minimum wage. The amount of compensation to the employee for unused vacation days upon dismissal, calculated on the basis of the minimum wage, will be 6,636.86 rubles (13,890 rubles / 29.3 days x 14 days).

Additional payment up to the minimum wage level

Initially, you need to refer to Art. 129 Labor Code of the Russian Federation. This states that an employee’s income includes not only the employee’s salary, but also his bonus payments. This amount includes compensation that is due for non-standard working conditions. This could be, for example, being in dangerous places or performing additional duties. The amount of income includes all kinds of allowances.

It is necessary to compare not only the salary portion, but also the entire amount of income to the employee’s account with the minimum wage. This is stated in a letter from the Ministry of Finance dated 2009. It also talks about the situation when an employee loses a bonus. What to do if in this case his income is below the minimum wage? The employer still needs to make additional payments if the employee goes on vacation.

At the same time, there are exceptions that apply to those who work in the Far North. Judicial practice and decisions of the Supreme Court indicate that income, when compared with the minimum wage, is carried out without taking into account bonuses for length of service and increasing coefficients. The employee’s experience in the Far North is not taken into account.

The same applies to employees of budgetary organizations. Their salary must be no less than the minimum wage. When assessing remuneration, overtime losses, financial assistance, sick leave, and birthday bonuses should not be taken into account. The additional payment for “state employees” is no different from what employees of budgetary organizations receive. The corresponding decision must be made by the chief manager of the institution.

What does the new minimum wage affect from 2020?

The new federal minimum wage (RUB 12,130) will change the calculation of wages, vacation pay, travel allowances and other payments, which are calculated from average earnings. Also, the minimum wage in some cases affects three types of benefits:

temporary disability benefits (sickness benefits);
maternity benefits (maternity benefits);
child care allowance up to 1.5 years.

However, it is important to recall that there are also regional and sectoral minimum wages.

What minimum wage should employers focus on in their calculations after January 1, 2022? Let's figure it out and designate the new amounts.

New federal minimum wage from 2022

The new amount of the federal minimum wage from 2022 is 12,130 rubles. Let's take this value as a basis. Employers are required to rely on it if they do not apply regional or sectoral minimum wages. From 2022, employers (organizations and individual entrepreneurs) have no right to pay employees less than 12,130 rubles per month if they have worked their normal working hours.

New regional minimum wages from 2022

Each region of Russia may have its own minimum wage after January 1, 2022 - it is established by the subjects through regional agreements. The regional minimum wage is, as a rule, higher than the federal minimum (Article 133.1 of the Labor Code). Employers are required to apply the regional minimum wage if they have joined the regional agreement.

Let us remind you that “by default” all employers who, within 30 calendar days after the publication of the regional agreement, have not sent a written reasoned refusal to the labor authority of a constituent entity of the Russian Federation, accede to the regional agreement. If the employer sent such a refusal, then you need to compare employee salaries with the new federal minimum wage (RUB 12,130). If a refusal was not sent, rely on the regional minimum wage in your region.

Here is an example of a waiver of the regional minimum wage.

If an employee fully works his monthly quota, but receives a salary less than the federal or regional minimum wage, then the employer faces an administrative fine of 30 thousand to 50 thousand rubles. Directors can also be fined - from 10 thousand to 20 thousand rubles. (Part 6 of Article 5.27 of the Administrative Code).

Now regional authorities are working and preparing to approve new minimum wages from 2022. We will publish a table with the new minimum wage for all regions of Russia.

Industry minimum wages

For some sectors of the economy (for example, the defense industry) there are special minimum wages. They are published in industry agreements. Only those industry organizations that have acceded to industry agreements are required to set wages no less than the industry minimum wage (Article 48 of the Labor Code). The procedure for waiving the sectoral minimum wage is the same as with regional agreements on the minimum wage.

How to calculate the amount of surcharge?

There is a special formula for this. It is necessary to take the minimum wage for the vacation period and divide it by the number of days in a month during which the employee will rest. The value is multiplied by the duration of the vacation. The amount of vacation pay is deducted from it.

Additional payment can be made to external part-time workers. It is carried out on a general basis. The concept of “external part-time work” means working in two companies at once. One job may be permanent. The second usually takes significantly less time.

It doesn't really matter. It is important here under what conditions the employee works. If he is employed at 0.5 rate, then he can count on at least 50% of the established minimum wage on vacation. The amount of vacation pay does not reach this level? Then the employer from the second place must make an additional payment so as not to violate the law.

Here you should take into account the number of days actually worked. For example, a subject worked 11 days a month (with a maximum of 22). Then the amount of the surcharge will be significantly less.

How does the minimum wage affect the final amount of vacation pay?

I have already said that such an indicator as the minimum wage (minimum wage) is approved at the legislative level by the government every year. The indicator serves to protect and provide certain guarantees to individuals performing certain job duties. In simple terms, the employer does not have the right to pay the employee less than the minimum wage at the time of calculations.

A significant point is that the minimum wage does not determine the size of the salary, but rather the payment that a citizen receives “in hand.” The amount should include various compensations and bonus payments.

Additionally, it is worth noting that only workers who have performed their duties for a period of time specified by current legislation can count on the minimum wage. Despite the fact that the minimum wage is set at the federal level, subjects can independently determine their indicator, but on condition that it is not less than the federal one. Starting from July 1, 2022, the minimum wage is 7,500 rubles.

Procedure for making additional payments

To begin with, you should refer to Art. 133 Labor Code of the Russian Federation. The article states that additional payment and settlement are the responsibility of the employer. He can use various methods. The following may be used as a surcharge:

increase in bonus;
material aid;
other payments due to subordinates.

In addition, the manager can issue a special order. It should be noted that there is no special form for additional payment. This paper can be designed in free form. Only the requirements that are accepted in this particular organization are taken into account. The official disposal of the manager must include the following information:

Title of the document;
Name of the organization;
Date of completion;
information about the employee;
amount of additional payment up to the minimum wage level;
the reason for filling out the document;
persons who are responsible for carrying out the order;
organization stamp.

In addition, it may be necessary to make adjustments to the employment agreement with the employee. All adjustments must be documented. This is stated in Article 72 of the Labor Code. At the same time, issuing individual orders is not the most common practice. Often the options that were indicated earlier are selected.

What liability awaits the employer in case of violation of the law?

The minimum wage is an important value that is used to calculate numerous macroeconomic indicators. It is enshrined not only in the Constitution of Russia, but also in Federal laws. If the employer does not take this value into account, then he falls under administrative liability. It is described in the Code of Administrative Offenses of the Russian Federation.

If this is a legal entity, then it will receive a fine of 30,000 rubles. But that's not all. In accordance with the laws, the manager himself can be held accountable. If the offense is repeated, the fine will be increased.

There may even be criminal liability. It occurs in two cases:

the employee’s earnings are below the minimum wage for 2 or more months;
the manager deliberately allows arrears.

As you can see, the legislation is quite strict regarding those who do not pay wages in full. So, it is recommended to hire an experienced accountant to avoid any problems in the future.

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