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 2022, 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 2022 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

What does it mean to have a salary not lower than the minimum wage?

The minimum wage is the minimum monthly salary of an employee under an employment contract.
If the employee has worked full time and fulfilled all duties, the accrued salary for the month cannot be less. And for an employee on a probationary period too - Art. 133 Labor Code of the Russian Federation. When working with the self-employed, there is no minimum wage limit.

The minimum wage depends on the subsistence level - this is the amount on which, according to the state, a person will survive one hundred percent. The minimum wage is set by law for each year. For 2022, the minimum wage is 12,792 rubles. In 2022 it will increase to 13,890 ₽.

But more often the region has its own increased minimum wage. Then the employer must pay no less than him. For example, in Moscow for 2021 the minimum wage is 20,589 ₽ - which means the federal one does not apply to Muscovites. Purely theoretically, an employer may refuse to pay wages at the increased regional minimum wage. But in reality it is difficult: no later than a month after its introduction, you must submit a reasoned refusal to increase to the regional authorities. But even then they will be allowed to pay the federal minimum wage only temporarily.

The minimum wage is also taken for the region where the employee performs his duties, and not where the employer is registered.

Article: federal minimum wage + table with regional ones for 2022 and 2022

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

Payroll preparation

Let's consider the regulations for calculating wages, as well as the articles related to payments included in it. In the Labor Code, the edition of which dates back to 2002, in publication 133 of the Labor Code it is clearly stated: the minimum wage does not take into account the payment of compensation and incentive payments. Such advances must be calculated above the minimum wage. However, in the current Labor Code there are no clear erasures in this regard. It only contains the provisions that the salary of an employee who has worked a full-time schedule for a month must be higher than the minimum salary established by federal law or equal to this amount.

With the advent of this edition of the Labor Code of the Russian Federation, questions and doubts began to arise. “We can interpret the wage provisions as meaning the employee’s monthly salary. But according to Article 129 of the Labor Code, wages mean salaries for work activities, calculated according to the number of hours, quality, working conditions, including compensation payments and incentive payments.” Thus, the information can be interpreted in such a way that wages include payments for compensation and an incentive part. Based on this, employers began to think that they could provide the salary part of the salary, for example, 8,000 rubles, and then, with the help of compensation and incentive payments, bring the amount to the minimum wage. As a result, all doubts and questions were dispelled by the Constitutional Court. It is also worth noting that the verdicts of this court must be complied with by all companies.

According to the decision of the Constitutional Court of the Russian Federation, in addition to the minimum wage, the following payments should be taken into account:

Compensation payments, for example, increases for hours worked beyond the established schedule, night shifts, and shifts scheduled on official weekends or holidays. (Based on the court decision of April 11, 2022 No. 17-P);
An increase in salary taking into account the temporary replacement of another company employee who, for one reason or another, is absent from the workplace, as well as when combining specialties, or the development of the company’s capabilities (Based on the court decision of December 16, 2022 No. 40-P);
Increase for work in difficult climatic conditions, for example, in the Far North (Based on the court decision of December 7, 2022 No. 38-P).

Please note that regional and industry agreements may contain their own adjustments related to increases and additional payments. Thus, the minimum wage in 2022 in Moscow, for example, does not include salary increases due to work in hazardous conditions.

According to the decision of the Supreme Court dated February 10, 2022 No. 65-AD20-1, incentive payments are also required to be taken into account on top.

Note!

The minimum payment does not include such items as:

1. Incentive payments (bonuses, etc.);
2. Compensation payments;
3. Payments for work in difficult climatic conditions;
4. Increases for work in the Far North.

Conclusion

In this article, we looked at how much the minimum wage should be in 2022 and what parameters need to be taken into account when paying it. We remind you that all aspects and features when calculating wages must be taken into account so that in the end the salary part does not amount to 8,000 rubles, and the remaining amount is “achieved” by compensations and bonuses. This calculation method is considered incorrect.

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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.

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).

Minimum wage and sick leave

As for sick leave, a new rule has appeared in 2022 - for a full month, sick leave cannot be less than the minimum wage. This improved the situation of those workers who, for example, had a short insurance period (less than 8 years). Of course, you also need to take into account the rate.

Example:
An employee works at a rate of 0.5. Takes sick leave in 2022 in January from the 11th to the 15th, the billing period is from January 1, 2022 to December 31, 2022. During this time, his earnings amounted to 300,000 rubles. The employee works in an area where the regional coefficient of 15% applies.
We calculate the average earnings:
300 000 / 730 = 410,96.
The minimum wage in 2022 is 12792. We calculate the average daily earnings from the minimum wage:
12792 / 31 = 412,65
It is already obvious that the minimum wage calculation is higher than the average of actual earnings. So we will calculate the benefit from the minimum wage:
412.65 * 0.5 (bet) = 206.33; 206.33 * 5 (sick leave days) = 1031.65; 1031.65 * 1.15 (regional coefficient) = 1186.40

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The minimum wage can also be set in each region. It is determined by the constituent entities of the Russian Federation by regional agreements on the minimum wage. As a rule, the regional minimum wage is equal to or greater than the federal minimum wage. If the region uses regional coefficients, then it must be taken into account that they are not included in the minimum wage and must be calculated in excess of its size.

For example: an employee works in an area equated to the regions of the Far North in a region where a regional coefficient of 15% applies, which means his minimum salary per month must be at least 12792 15% = 14710.80.

Please note that if your sick leave, for example, began in December 2022 and continued in January 2022, then to compare benefits in each individual month you will have to use a different minimum wage - in December it was 12,130, and in January it was already 12,792 rubles.

Note that if an employee was sick, then his earnings in a month not fully worked may be less than the minimum wage. Let's take the data from the previous example about sick leave. The employee was sick from January 11 to January 15, 2022 (5 calendar days, all of them were working days). According to the production calendar, he has 15 working days in January. Let his salary be 18,000 rubles. When calculating salaries for January, the accountant calculated the salary:

18000 / 15 * 5 = 12000 - this is how much employees’ salaries were accrued.

At the same time, there is no violation, because he worked for less than a month.

Similarly, you need to consider the months in which the employee took leave, paid or without pay, absenteeism, etc.

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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.

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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.

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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.

Types of liability for wages below the minimum wage

Administrative liability is provided for setting wages below the minimum wage. This violation entails the imposition of an administrative fine on individual entrepreneurs in the amount of 1,000 to 5,000 rubles. Liability is also provided for officials - a warning or a fine in the amount of 10,000 to 20,000 rubles. For legal entities, the fine ranges from 30,000 to 50,000 rubles.

Setting a wage below the minimum wage by a person who has previously been punished for a similar offense (if these actions do not contain a criminal offense) will result in increased sanctions. The fine for individual entrepreneurs will range from 10,000 to 30,000 rubles. For officials, disqualification is provided for a period of one to three years or a fine of 20,00 to 30,000 rubles; for legal entities – a fine from 50,000 to 100,000 rubles.

For paying wages for more than two months in an amount below the minimum wage, an individual entrepreneur may also be subject to criminal liability. The sanction provides for a fine in the amount of 100,000 to 500,000 rubles, salary or other income for a period of up to three years, or forced labor for a period of up to 3 years or imprisonment for the same period with deprivation of the right to engage in certain activities for a period of up to three years or without one.

If you need a qualified and experienced lawyer in administrative matters, contact the Kirpikov and Partners center.

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.

How to apply for a salary increase at an enterprise

A salary increase to the minimum wage is documented by the following documents:

An order from the head of the organization indicating the list of positions for which salaries are increased.
Additional agreements to employment contracts with employees.
Order from the manager to make changes to the organization’s staffing table.

Free webinar “How to organize HR records from scratch.” Hurry up to register. The webinar will take place on February 25 at 10:00 Moscow time. We will tell you about the employer’s key local acts, document requirements and liability for violation of the Labor Code of the Russian Federation.