⭐ Failure to pay vacation pay on time according to the Labor Code of the Russian Federation: what are the consequences

Labor Code of the Russian Federation on the timing of receiving vacation benefits

Annual paid leave is provided to each employee. This right is enshrined in law by the corresponding article of the Labor Code of the Russian Federation.

The duration of annual paid leave usually does not exceed 28 calendar days. Longer vacations are established for certain categories of workers, for example, for workers of the Far North, employees of hazardous industries, etc.

The legislator provided for the preservation of the average earnings of the working person during the annual rest period allotted to him. Payment for this period is set according to a formula.

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.

The period for which vacation pay is paid is established by Part 9 of Article 136 of the Labor Code of the Russian Federation. Vacation pay must be paid at least 3 days before the start date of the vacation. Earlier you can pay vacation pay, but later you can’t. In case of delay in payment of benefits due to the fault of the enterprise, the employee is entitled to compensation.

It is also not very convenient to make a payment earlier than three days in advance. Various circumstances may arise in which going on vacation will have to be postponed (for example, illness). Therefore, it is optimal to accrue and pay vacation pay 3 days before the start date of the vacation.

Despite the fact that the above-mentioned article of the law does not specify the status (calendar or working) of these three days, there is a special letter from Rostrud (No. 1693-6-1 dated July 30, 2014), according to which the counting must be carried out in calendar days. Three calendar days before the start of the vacation, benefits must be paid.

Vacation pay was not paid on time: administrative sanctions

If vacation pay is not paid on time (3 days before the vacation) and in full, the Labor Inspectorate has the right to fine (Clause 6, Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

the head of the employing company - by 10–20 thousand rubles;
employer-individual entrepreneur - by 1–5 thousand rubles;
legal entity - 30–50 thousand rubles.

If the employer ever again fails to pay vacation pay on time (or does not pay it in full), this may lead to sanctions such as:

1. Increased fine:

director - up to 30 thousand rubles;
employer-individual entrepreneur - up to 30 thousand rubles;
employer-company - up to 100 thousand rubles.

2. Removal from work of the director for 1–3 years.

Sanctions against the employer may be even more stringent and applied in accordance with the Criminal Code of the Russian Federation.

Features of vacation payments

Transferring vacation pay is an operation similar to calculating salary receipt. Payment occurs in stages:

The accountant calculates the amount of vacation payments.
The employee is notified of this, as well as how much he is entitled to. The notification comes in writing.
Money in a predetermined amount is transferred to the person’s salary card. In addition, he can receive them in cash through the cash register. It all depends on the form of remuneration chosen by the organization.

Vacation pay is a citizen's income. Therefore, officially working citizens are responsible for paying taxes to the state budget. And this fee is included in the amount of vacation pay, calculated at a rate of 13%. The amount of the mandatory fee is withheld from the company employee when issuing money. In addition to taxes, do not forget about the contributions that are transferred by the employer to extra-budgetary funds.

The legislator does not set the exact date when you need to apply for leave. If, for example, this is done 3 days in advance, the employer will not have time to calculate vacation pay. Therefore, it is better to write it a week before the intended vacation. At many enterprises, the application is written in 2 weeks.

When the employer is not charged a fine

An employer can avoid a fine or other punishment if the boss let the employee go on vacation earlier than the vacation specified in the application (for example, on the day the application was written).

How can an employer avoid being punished: accrue an amount greater than required, or make an independent calculation for each day of delay. The basis for compensation should be indicated in the statement.

The head of the company should know that even if the late payment was not his fault, the employee has the right to receive compensation legally. If there is a delay in the payment of money, then it is more profitable for the company to independently calculate and issue compensation. Otherwise, there will be proceedings, verification and penalties.

When calculating compensation, all overdue days are taken into account, i.e. those that came after the scheduled accrual date.

Since the reason for the delay in payment does not matter, compensation is calculated using a single formula.

In order to avoid shortcomings and minimize risks, the employer should tell employees to write a vacation application a week before the required date. During this time, accountants must calculate and issue money.

An employee cannot receive vacation pay in parts, even if he urgently requests it. This puts the employer at risk, because... leads to a violation of the legislation of the Russian Federation.

Examples of situations

Afanasyev S.V., works as a sales manager at Market OJSC. He wrote a statement on 01/12/2020 that he wants to go on vacation on 01/20/2020 and return to work on 02/05/2020. The duration of the vacation has been agreed upon with the employer, which is confirmed by his signature on the application.

The amount of vacation pay is 20,000 rubles.

According to the rules of the Labor Code of the Russian Federation, funds should have been credited on January 20, 2020, however, to the card of Afanasyev S.V. the money was received on January 22, 2020.

Payments are three days late.

Therefore, the employer needs, along with vacation pay, to accrue compensation for 3 delayed days.

The Central Bank set the key rate at 7.5%.

After withholding tax, the employee receives vacation pay in the amount of 17,400 rubles.

20 000 – (20 000 * 13%)

The calculation of the compensation amount looks like this:

17,400 * 1/150 * 7.5%*3 = 26.1 rub.

If the employer does not independently calculate and pay compensation, the employee will submit an application. After this, a tax inspector will conduct an inspection and a fine of 30,000 to 50,000 rubles will be imposed on the company.

However, there are several situations when an enterprise can appeal the imposed sanction.

General accrual algorithm

Every employer is required by law to pay statutory holiday pay strictly in the prescribed amount. If this rule is not followed, the company or individual entrepreneur will be assessed a certain fine. Calculating the amount of holiday pay required by law is relatively simple. It is carried out as follows:

The estimated time period is determined. By default, its standard value is 12 full months preceding the start of vacation or dismissal. If such a billing period is slightly different, you will need to set the year and month yourself;
Time periods that are not used to calculate compensation are excluded. A detailed list of days is presented in the official government decree;
In conclusion, the personnel employee multiplies the total number of days by the average daily earnings established in the organization. After this, personal income tax is calculated, the amount of which is subtracted from the final amount.

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The amount received after calculations must be transferred to the employee within the period established by modern legislation.

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The process of crediting vacation pay is carried out using the usual method - card, cash at the cash desk. The payment of the required amount is reflected in the accounting report. Failure to comply with this rule will automatically result in the appointment of an official desk audit. This situation, in turn, will lead to rather unpleasant consequences for the employer. These may include fines and other equally serious sanctions.

What amounts should be included in the calculation?

When calculating average earnings for a working year, it includes those payments that are approved by the organization. Such payments include: salary at the approved rate; compensation for overtime work; premium; other payments for labor performance. But there are payments that can be issued along with the salary, but will not be taken into account when calculating vacation pay. These are: travel payment; compensation for food and the use of personal transport; sick leave; other non-labor or social benefits.

When is it paid?

Every employee who is authorized to calculate and accrue funds is required to know when vacation pay is paid? The legislation has established a certain period for this - three days before the start of the holiday.

But this issue also has its own nuances. For example, what to do if the accrual date falls on a weekend and the accounting department is closed. In this situation, the money must be transferred on the last working day before the weekend. The same applies to holidays. According to the law, none of the holidays, especially long ones, can interfere with the payment of vacation pay.

This is also important to know:
What does a violation of labor discipline entail?

Therefore, if vacation starts on Monday, when are vacation pay paid? Funds can be transferred on Friday. In addition, tax is also charged on vacation pay. This fact should not be forgotten when calculating funds.

Another fact that cannot but concern employees is whether vacation pay is paid along with their salary or not? The law does not provide for such a rule. Not a single legislative act speaks of this as an obligation, which means that the employer should not pay both wages and vacation pay at the same time. The employee must receive vacation pay three days before the rest, and the salary must be accrued on time.

3 working days or calendar days

No changes have been made to this rule. Thus, the payment period for vacation pay in 2022, as in all previous years, is three days. However, the practical application of this rule has long been a matter of debate. It is not clear from the text of the article whether the payment period for vacation pay is 3 working or calendar days, and whether the payment day is included in the specified period. No separate methodological instructions were given in this regard, however, explanations from the Ministry of Labor did follow, although they were quite contradictory; there is also no uniform judicial practice on this issue.

Criminal liability.

If an employee does not receive vacation pay when due or does not receive it in full, criminal sanctions may be applied against his employer:

— monetary penalty in the amount of up to 120,000 rubles;

— a monetary penalty in the amount of the annual profit of the perpetrator of the violation;

— issuing a ban on him from holding a leadership position for a period of 1 to 3 years;

- assigning him corrective labor activity for a period of up to 2 years;

— imprisonment for a period of up to 1 year;

— monetary recovery in the amount of up to 500,000 rubles;

- a monetary penalty equal to the average annual earnings for the last 3 years (accompanied by a ban on holding a position);

— assignment of compulsory corrective labor activity for a period of up to 3 years (with subsequent deprivation of the right to occupy a leadership position);

- imprisonment for a period of up to 3 years (followed by deprivation of the right to hold office upon release);

Explanations from the Ministry of Labor - how to count 3 days

The Ministry of Labor was forced to answer numerous questions from employer representatives regarding the period for payment of vacation pay.

First, in an information letter dated June 16, 2014, the Ministry of Labor and Social Protection of Russia spoke in the spirit that the established period begins the next day after payment, that is, the day of payment is not included in the deadline (see explanations in the document “On the need for recalculation vacation amounts taking into account changes in the average monthly number of calendar days"). This position is consistent with the general procedure for calculating terms adopted in Russian legislation, however, such a rule is not enshrined in the Labor Code; on the contrary, in Art. 14 states that the period of time associated with the emergence of any rights of employees begins from a specific date that determines their beginning. The special procedure for calculating deadlines is always specified separately by the legislator.

It is not surprising that an explanatory letter No. 1693-6-1 dated July 30, 2014 followed, from the text of which it could be concluded that Rostrud (Federal Service for Labor and Employment, under the jurisdiction of the Ministry of Labor and Social Protection) is of the opinion that in widespread situations where an employee goes on vacation on Monday, payment can be made on Friday. Thus, Rostrud ambiguously spoke in favor of the position of calculating the three-day period directly from the date of payment.

However, not all courts supported Rostrud at that time; there was no uniformity in judicial practice. Perhaps the only provision that has not been questioned is that the law deals with calendar days, not working days. But how to count these 3 days, neither legislators nor law enforcement officials could give a clear answer.

General concepts

Each officially employed employee has the right to annual paid leave for 28 calendar days. This norm is regulated by Art. 115 TK. Vacation may be divided, but on the condition that one of the parts will not be less than 14 days (Article 125 of the Labor Code). You can take your first vacation 6 months after employment. The Labor Code also provides for several situations when an employee can go on paid vacation earlier.

Every employee must remember that vacation includes weekends, that is, it is calculated in calendar days. Extension of vacation is possible only if the vacation period includes holidays or sick leave, since they are not included in vacation.

Vacation pay is calculated on the basis of 12 months, that is, for their calculation, wages for the previous year are taken. This period includes exclusively hours worked.

Terms and procedure for calculating vacation pay according to the Labor Code of the Russian Federation

To calculate vacation, the following indicators are taken into account:

The number of working days of a person. This is the billing period and its duration.
The amount of wages for the billing period.
Rate for 1 working day (average).
Total payment amount.

Important
The main indicator in calculating vacation is the billing period. It determines the number of days that employees are paid when they go on vacation.

If a person has worked for a company for at least a year, then his pay period is 12 months. All calendar days are counted, from the 1st to the 30th or 31st of a specific month. In addition, an indicator of the employee's salary is required. It is considered the total income received by him during the billing period. How is vacation pay paid correctly? If a person works at an enterprise and regularly receives a salary, then it will be multiplied by 12 (the sum of the months of the year). From this we get the amount of earnings for the year. But such a calculation occurs if a person has worked at the enterprise for more than a year.

The average income that a person receives in 1 day is also a component of the calculation.

Important
It is logical that a person may not work at the enterprise for 12 months, but he is still entitled to vacation. In this situation, a different calculation algorithm is used, since each case is individual.

Regardless of the calculation, an employee of an enterprise has the right to vacation. It must be provided by the employer every year. Rest is paid. This system should not be confused with other leaves, which are regulated by other articles of the Labor Code of the Russian Federation, and can be provided by agreement between the employer and his employee. How are vacation pay paid? Three days before going on vacation according to the previously written schedule.

And what to do

There are at least two ways out of every situation.

A seemingly hopeless situation can still be resolved without damage to the employer by showing some ingenuity and knowledge of other articles of the Labor Code of the Russian Federation.

Without risk and violations:

According to Article 128 of the Labor Code of the Russian Federation, an employee for family reasons and other valid reasons may be granted leave without pay. In our case, the duration of this leave is three calendar days, after which paid leave begins.
If the employee has time off, you can take the first three days at their expense, followed by paid leave.

By agreement with the employee and the HR department:

Put an earlier date on the application, and for any late payment of vacation pay, accrue and pay a penalty for three days (Article 236 of the Labor Code of the Russian Federation).
The leave is issued at the request of the employee, but a verbal agreement is concluded between the employee and the employer, according to which he will go on leave three days earlier and, accordingly, will begin his duties after the leave also three days earlier.

Labor consultant A.B. Frolova

, for the magazine “Regulatory Acts for Accountants”

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Opinion of Rostrud: what is the period for payment of vacation pay?

It echoes the norms of Art. 136 of the Labor Code of the Russian Federation and letter of Rostrud dated July 30, 2014 No. 1693-6-1, defining a three-day minimum in calendar days counted before the start of vacation. The document also notes the need to take into account non-working days. If they exist, the period by which payments must be made increases, i.e. The required amounts will have to be paid out in 4, 5 or more days. For example, when providing leave from June 14, 2022, payment is made not on the 10th, but on the 9th of June on Saturday (it was a working day), since the 10th and 11th of June are weekends, and the 12th is a holiday day.

This is also important to know:
How to bring an employee to disciplinary liability

However, letter No. 1693-6-1 does not clarify this circumstance: whether the day of payment should be counted within the three-day period. Only the possibility of issuing vacation pay on Thursday or Friday to an employee who goes on vacation on Monday is mentioned.

The absence of this clarification has given rise to differences in the interpretation of deadlines in different regional labor inspectorates. Thus, in the Irkutsk region, it is considered legal to pay vacation pay 2 days on the 3rd day before the vacation, and in the St. Petersburg GIT it is recommended to transfer or issue money for vacation 3 days on the 4th.

In practice, based on legal regulations, security considerations and simple everyday caution, accountants make payments exactly on the 4th day. In addition, there are many conflicting decisions of the Arbitration Court.

Types of sanctions for late payment

For delaying the period during which vacation pay must be paid, administrative or criminal liability is imposed. The exact punishment depends on the reason for which the offense occurred, as well as how many employees did not receive vacation pay within the prescribed period. More severe penalties are applied to employers who commit repeated offenses.

Fines

The most common penalty is the collection of fines for late payment of vacation pay. If the employer does not pay vacation pay 3 days before the vacation, the employee can file a complaint with representatives of the labor inspectorate. If, after an inspection, an offense is confirmed, then the management of the company is held accountable under clause 6 of Art. 5.27 Code of Administrative Offences :

the director of the enterprise pays from 10 to 20 thousand rubles;
an employer with individual entrepreneur status is charged from 1 to 5 thousand rubles;
a sanction of 30 to 50 thousand rubles is imposed on the entire company.

If a violation is detected repeatedly , this leads to a significant increase in punishment. It is presented in two versions:

Fine. The director of the company or the employer-individual entrepreneur will have to pay 30 thousand rubles, and a sanction of 100 thousand rubles will be levied on the entire enterprise.
Removal of the director from his position. The period varies from 1 to 3 years.

More stringent sanctions under the Criminal Code may be applied to management.

Additionally, the director will have to provide the employee with compensation for delays. To calculate it, a standard formula is used: 1/150 of the refinancing rate * the amount of vacation pay * the number of days of delay.

Reference! You can find out the key rate of the Central Bank on the organization’s website.

The employer has the right to pay the employee greater compensation at his own request. The minimum amount, which depends on the refinancing rate, is not subject to personal income tax, but if a large amount is paid, then you will have to pay income tax on it.

It is also useful to read: Do I need to pay insurance premiums from vacation pay?

Criminal liability

It applies to employers who not only missed the deadline, but also paid less vacation pay without good reason. Penalties under the Criminal Code are used when there are several grounds.

For example, if the amount of vacation pay is less than the required amount, and a delay of more than 3 months is detected, then the following measures are prescribed under Art. 145.1 CC :

levying a fine from 100 to 500 thousand rubles;
the sanction may be equal to the offender's annual income;
prohibition from holding leadership positions for one year;
performing compulsory work for a period of 2 to 3 years;
imposing a prison term of 1 to 3 years.

Attention! Compulsory labor and imprisonment are imposed in conjunction with a ban on holding leadership positions.

If the period of delay exceeds 2 months, and serious consequences have been identified, then the following sanctions are applied :

fine from 200 to 500 thousand rubles;
a sanction, the amount of which is equal to the income of the offender for a period of 1 to 3 years;
imposition of imprisonment for a term of 2 to 5 years with simultaneous disqualification.

The above penalties may be applied together. For example, sometimes managers simply withhold vacation pay, so administrative measures are taken against them. If the funds are not paid within two months or in a smaller amount, then penalties under the Criminal Code are additionally used.

Changes in vacation pay payment terms from July 1, 2022

In such a situation, in the employment contract, the director of the company makes reference to a specific provision of the collective agreement. When paying an employee his salary, the accountant indicates the following information on the pay slip:

the main part of the salary, which is accrued for a specific month;
the size and basis of the deductions, if any;
monetary compensation, vacation pay, severance pay, etc.

Deadlines for payment of the advance payment in 2022 From October 3, 2022, the changes provided for by 272-FZ came into force. Some amendments to the law also apply to advance payments.

The employer prescribes salary accrual periods here. He can also prescribe the issuance periods, describe them in another act, and leave a link to the document in the contract;

Rules of routine. The head of the company must indicate the periods for calculating wages in the rules of the schedule, and in other documents leave a reference to this provision. The fact is that the rules of the schedule are followed by all employees, and the employment contract is followed only by a specific employee. The company may not have a collective agreement;
Collective agreement. In this document, the head of the enterprise indicates the point in which the periods for accrual of salary are entered.

However, the legislation does not indicate whether this should be 3 full days or whether rest can begin on the third day after payment of vacation pay. It is also not indicated which days we are talking about: working days or calendar days. Three days can be interpreted in different ways. In the situation that became the basis for the decision of the Perm Regional Court, the State Labor Inspectorate came to the organization with an unscheduled inspection of compliance with labor legislation and other regulatory legal acts containing labor law norms. The inspectors found a violation in the timing of payment of vacation pay.

They indicated that after payment of vacation pay, at least 3 full calendar days must pass before the start of the vacation. If this requirement is not met, the employee's rights are violated.

Important
In the inspection report, GIT inspectors classified all situations where employees received vacation pay 3 days in advance as violations of deadlines, taking into account the day of going on vacation itself.

You can get a vacation after working a full six months. But this is a vacation “in advance”. Then leave will be granted every 11 months. At the end of each calendar year, a vacation schedule is drawn up, according to which all employees “walk” in the next calendar year.

Vacation can be divided into several parts, but one of them should not be less than 14 calendar days. Then you can “split” your vacation into at least 1 calendar day.

The procedure for “leaving” for a well-deserved work holiday is as follows:

the HR department notifies the employee in writing 2 weeks before the scheduled leave date;
the employee writes a leave application;
the employer signs the application and an order is issued based on it;
the employee receives “vacation pay” - compensation for the fact that he does not work on these days.

Vacation pay is paid based on the employee’s average earnings for 1 working day in the previous working year. To do this, you need to know the billing period - that is, the start and end date of the working year. For example, an employee goes on vacation in 2022 on July 8, and he got a job on March 23, 2016. The calculation period for vacation pay in 2022 is from March 23, 2022 to March 22, 2019.

To calculate average earnings, it is necessary to add up all labor payments to the employee and divide by the number of days he actually worked in the last working year. The result is the average employee's earnings per 1 working day. This number must be multiplied by the number of days of rest.

Right to rest

First of all, you need to figure out who can rest and when.
According to Article 114 of the Labor Code of the Russian Federation, an employee has the right to annual leave. The number of days of legal rest depends on many factors:

length of service in the organization;
special working conditions specified in the employment contract;
climatic conditions at the place of work;
the employee’s rights to additional leave, voluntarily prescribed by the employer in the collective agreement or internal regulations.

A standard vacation lasts 28 days (Article 115 of the Labor Code of the Russian Federation). In this case, we are talking about calendar days, including weekends, but excluding public holidays (this is a closed list of dates prescribed in Article 112 of the Code).

For example, an employee wrote an application for leave from March 1 to March 20, 2019. This is a period of 20 days, if you count strictly according to the calendar. But March 8, an official holiday, falls within this period. Therefore, the duration of the vacation will be only 19 days. And it is on the basis of 19 days that vacation will be paid.

Please keep in mind that postponing weekends is not considered a holiday. That is, in the above example, despite the fact that Monday March 7 was a non-working day, it does not apply to holidays and does not reduce the number of vacation days.

Additionally, the law provides for cases of increasing the duration of rest.

The table shows the minimum duration of the increase to 28 days.

Employee category/exceptional working conditions	Minimum duration of additional leave	Note
Work with harmful or dangerous working conditions	7 days	A special assessment of working conditions and stipulated conditions for the duration of leave in the employment contract are necessary.
Workers with a special nature of work	Determined by the Government of the Russian Federation	Only if indicated in the list approved by the Government of the Russian Federation.
Irregular working hours	3 days	In commercial organizations, the duration of such leave is prescribed in the collective agreement or internal labor regulations. In government agencies - normative legal acts.

If there is no desire to rest for longer than 4 weeks, then the law provides for the possibility of replacing additional leave with monetary compensation (Article 126 of the Labor Code of the Russian Federation).

The frequency of employee rest is prescribed in the vacation schedule approved annually.

Two weeks before the start of his vacation, the employee must be notified against signature. If his plans change, then upon application, the vacation dates can be postponed.

Payment order

To calculate vacation pay, the concept of average wages (AWS) is used.
When calculating this indicator, you must use the formula: SWP = ZP / 12 / 29.3

The numerator (ZP) will include all accruals provided for by the remuneration system and the employment contract for the 12 months preceding the vacation.

The denominator includes 12 calendar months and a certain number 29.3. This is exactly what is considered to be the average number of days in a month in the 2022 edition of the Labor Code.

Wages do not include all social payments (sick leave, benefits, etc.), vacation pay and bonus payments that are one-time in nature and not reflected in the remuneration system or employment contract.

Now he is going on vacation for 14 days. In this case, the amount of vacation pay will be (30,000*12 5,000 5,000)/12/29.3*14=14,732.65 rubles.

Deadlines

Vacation pay must be paid no later than three days before the start of the vacation.
Moreover, if such a day falls on a weekend, then the money is transferred the day before. But there are cases when an employee writes a statement and goes on vacation the very next day. The legislator does not prohibit such surprises with the mutual consent of the parties. In this case, you must understand that the employer cannot comply with the requirements of the Labor Code.

And it would seem that in such a situation the violation of the law occurs through no fault of the company. But there is a practice when companies are fined in these cases too.

For most small commercial organizations, the Labor Inspectorate is a kind of mythical body that can only come after receiving a complaint from an employee.
But for budgetary organizations and for organizations that are large taxpayers, the prospect of meeting such an inspector is very real.

When are vacation pay transferred?

Finding out this period is necessary in order to plan a budget and calculate funds for vacation and other expenses.

The payment will be accrued after the employer’s order is submitted to the accounting department in form T-6.

How many days in advance

To find out how long before the start of the vacation vacation pay is transferred, you need to refer to the norms of the Labor Code of the Russian Federation - Art. 136. The last paragraph contains information that vacation pay is paid no later than three days before the start of the vacation.

Internal regulations may provide for a different period, but it should not be less than the period specified in the law.

Upon dismissal

If an employee quits and did not use his vacation, then the money should be calculated in the following way:

The coefficient is 2.33 (for a vacation of 28 days) multiplied by the number of months worked in a year.
The resulting value is the vacation time that must be paid. If an employee leaves in the first half of the month, then this amount will be rounded down; if in the second half, then up.
The calculated vacation period is multiplied by the employee’s average daily earnings.

This is also important to know:
How does dismissal occur due to loss of trust under an article of the Labor Code of the Russian Federation?

Vacation pay must be paid along with the settlement. The employer must issue it on the last working day.

Important
Payment of vacation pay according to the Labor Code of the Russian Federation must be made within the time limits established by law.

When going on maternity leave

You can receive basic paid leave payments only after leaving maternity leave and only if the woman decides to use the right to basic leave.

Material aid

One should distinguish from vacation pay financial assistance, which can be paid both by the employer and by other organizations - public associations and trade unions.

Its size is regulated by local regulations and depends on the decision of the organization’s governing bodies.

What is due in addition to the amount of vacation pay?

If vacation pay is not paid on time, the employee is entitled to compensation. It is calculated from the amount of debt multiplied by the refinancing rate of the Central Bank of the Russian Federation. The law makes no difference based on the reasons for the lack of timely vacation payments. In any case of delay in vacation pay, the employee may demand compensation in excess of the required amount.

Delay - every day after the deadline on which vacation funds should have been paid.

If vacation pay is not paid on time, the employee has the right to demand additional compensation in the form of a penalty. It is important that this rule applies not only to compensation paid in connection with vacation, but also to wages, bonuses and other additional payments.

From which fund

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Financial assistance can be paid by professional associations of employees and trade unions, associations (for example, construction workers, industrial and agricultural workers).

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The Social Insurance Fund pays for employee sick leave and ensures control over the employer’s payment of insurance contributions.

Employer's liability

If a subordinate does not receive vacation pay on time, he has the right to appeal to the Labor Inspectorate, the prosecutor's office or the court. By doing this, he initiates proceedings and holds the management of the enterprise accountable.

The consequences of late payment of vacation pay for the employer are given below:

a fine in the amount provided for by the Code of Administrative Offenses or the Criminal Code of the Russian Federation;
forced labor;
detention;
disqualification from office;
deprivation of the right to engage in a certain type of activity.

Also, the employer will have to pay the subordinate vacation pay in full, compensation for causing moral damage (at the request of the employee).

When to pay personal income tax on vacation pay in 2022

It is worth noting that in most cases it is not necessary to apply for annual paid leave. The fact is that enterprises draw up a vacation schedule, of which the employee is notified in advance, against signature.

When the deadline established by the schedule approaches, the director issues an order to grant vacation, and the accounting department calculates vacation pay based on it. The employee, having read the order, puts his signature on it as a sign of consent.

If an employee requires paid leave, but not at the time established by the vacation schedule, he must write an application at least 4-14 days before the expected date of departure. About the timing of payment of vacation pay, see the video below: If the last of the three days before the issuance of vacation pay coincides with a weekend As mentioned above, vacation pay must be issued no less than three days before the first day of vacation.

Situations suitable for an employer to challenge imposed sanctions

The employee wrote an application for leave due to urgent family circumstances, so he will be absent on the next working day, moreover, the date of leave has been agreed upon with the employer. However, calculations and accrual of money cannot be carried out for such a period. After all, according to the law, funds are credited three days before the approved date.

This situation will attract the attention of the inspector and the violation will be indicated in the act, but this will not entail the mandatory payment of a fine, because it can be protested. This is only possible because the company cannot make the payment in such a short period of time. Therefore, the imposed administrative penalty will be lifted.

However, the inspector checks all aspects of the violation. If the company made a mistake once, and the delay period is short, then the company can write a warning. But, if violations are recorded several times, the company will be fined.

Responsibility for violation of deadlines for payment of vacation pay

But, if such a violation did occur, or occurs at the enterprise, then you should remember that if the terms of payment of vacation pay are violated, the employer is subject to liability: financial, criminal and administrative.

The employer's financial liability is provided for in Article 236 of the Labor Code of the Russian Federation. It states that for delays in wages, vacation payments, dismissal payments, etc., the organization is obliged to pay monetary compensation to the employee. Such compensation may be provided for in labor or collective agreements, and can, in principle, be any amount agreed upon with the employees.

But there is one important “but”: compensation for delayed payments cannot be calculated less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation on the day of actual payment of vacation pay for each day of delay. Delay in payment of vacation pay is considered from the next day after the due date and ends on the day of actual payment (including this day).

The timing of payment of vacation pay to the employee must be strictly observed, special attention must be paid to days falling on weekends and holidays, since the employer will bear financial responsibility in any case, regardless of whether he himself is to blame for the delay or some circumstances beyond his control.

Penalty for violating the deadline for paying vacation pay

Delayed payment of vacation pay may result in an administrative fine. For the first violation:

for an official (for example, the head of an organization) – from 10,000 to 20,000 rubles;
for an entrepreneur – from 1000 to 5000 rubles;
for an organization – from 30,000 to 50,000 rubles.

Repeated violation entails:

for an official (for example, the head of an organization) – a fine of 20,000 to 30,000 rubles. or disqualification for a period of one to three years;
for an entrepreneur – a fine from 10,000 to 30,000 rubles;
for an organization – a fine from 50,000 to 100,000 rubles.

Accounting entries for vacation pay and compensation

Before calculating compensation, you must accrue delayed vacation pay.

In organizations where the specifics of the type of activity and accounting policies make it possible not to create reserves for future expenses, the accounting entries will be as follows:

Dt 20, 26, 44 Kt 70 - vacation pay accrued.

Dt 70 Kt 68 - personal income tax withheld.

Dt 20, 26, 44 Kt 69 - insurance premiums are charged.

Dt 70 Kt 50, 51 - vacation pay was paid.

The date of actual receipt of income in the form of vacation pay is the day of payment of these vacation pay, including their transfer to the employee’s bank account (subclause 1, clause 1, article 223 of the Tax Code of the Russian Federation).

If you work with reserves, then the reserve is accrued using the following transactions:

Dt 20, 26, 44, etc. Kt 96 (96 “Reserves for future expenses”).

Dt 96 Kt 70 - vacation pay is accrued from the vacation reserve funds.

Dt 96 Kt 69 - insurance premiums are calculated at the expense of reserve funds.

Dt 70 Kt 68 - personal income tax withheld.

The next action will be to calculate compensation for late payment of graduation fees:

Dt 91-2 Kt 73 - compensation was accrued for delayed wages.

Dt 73 Kt 50.51 - compensation paid.

We use account 73 “Settlements with personnel for other operations” because the calculation of compensation is not related to calculations of wages. The expenses incurred do not relate to expenses for ordinary activities, therefore we take into account compensation in account 91.2. (Clause 11 PBU 10/99). Compensation is a sanction for violation of the terms of an employment (collective) agreement.

The final touch in the design is to reflect the amount of compensation for the delay in payment of vacation pay on the pay slips (Article 136 of the Labor Code).

Problems of calculating the period for payment of vacation pay

There are no special rules for calculating the period for payment of vacation pay. In this regard, in law enforcement practice there has not been a single position on the issue of calculating the period for paying leave. So, for example, from the Information of the Ministry of Labor and Social Protection of the Russian Federation dated June 16, 2014 “On the need to recalculate vacation amounts taking into account changes in the average monthly number of calendar days,” it follows that specialists from the Ministry of Labor and Social Protection believe that the three-day period begins the next day after payment for vacation.

And from the above letter dated July 30, 2014 No. 1693-6-1, in our opinion, it follows that Rostrud adheres to the position that the three-day period should be calculated directly from the day of payment of vacation (the letter states that payment of vacation pay can be made on Friday (three days before the start of the vacation), and within the meaning of the explanations contained therein, we are talking about a situation where the employee is granted vacation on Monday).

Judicial practice on this issue is also not uniform. Thus, some courts believe that the payment day is included in these three calendar days (decision of the Moscow City Court dated 02/18/2014 No. 7-764/14, decision of the Pavlovo-Posad City Court of the Moscow Region dated 09/03/2012 in case No. 2-1590/ 2012, ruling of the Investigative Committee for civil cases of the Moscow City Court dated 09/02/2010 No. 33-23757, decision of the Shilkinsky District Court of the Trans-Baikal Territory dated 10/19/2012 in case No. 2-843/12), others - that between the date of granting leave and the date of payment should be at least three full days (see, for example, the decision of the Bezhitsky District Court of Bryansk, Bryansk Region dated October 20, 2014 in case No. 2-2266/14, the decision of the Industrial District Court of Khabarovsk, Khabarovsk Territory dated November 13, 2012 in case No. 2 -5201/2012; decision of the Penza Regional Court of July 23, 2015 in case No. 7-288/2015).

Material liability

Regardless of the size of the fine for late payment of vacation pay or other sanctions, the manager will also have to bear financial responsibility. We are talking about monetary compensation provided for in Article 236 of the Labor Code.

In addition to vacation pay, you will have to pay compensation, which cannot be less than 1/150 of the Central Bank key rate for each day of delay.

Additional questions

Why vacation pay is less than salary

An unpleasant fact: vacation pay is often less than salary.

This is also important to know:
What the labor dispute commission considers

Salary for days worked is calculated simply: the salary is divided by the number of working days in the month and multiplied by the number of days worked. For example, in August of this year there are 23 working days, and in May - 20. One working day in May will cost more than in August.

Average daily earnings - the basis of vacation pay - are calculated on calendar days, not working days. Therefore, the SDZ is usually less than the cost of a working day.

When vacation falls only on working days - for example, Monday, Tuesday and Wednesday - then for these three days the person receives three SDZ. And three working days are deducted from his salary, which, as a rule, are more expensive.

Vacation pay can be unpleasantly small:

if the employee was on maternity leave, on sick leave, on a business trip, on vacation, or participated in blood donation days;
when there was a salary increase during the year;
there were no bonuses during the year (or there were, but not for work, but incentive payments in honor of an anniversary, for example);
there are holidays in the month.

The vacation application was submitted less than 3 days before the expected vacation date

Most likely, such leave will not be issued: the employer will not have time to make calculations and pay vacation pay.

Although the Labor Code of the Russian Federation does not regulate the time for submitting an application for vacation, given that vacation pay must be paid 3 days before its start, the application must be submitted at least 4 days in advance. Otherwise, the employer simply will not have enough time to complete the registration and payment within the period established by law.

If an employee requires paid leave, but not at the time established by the vacation schedule, he must write an application at least 4-14 days before the expected date of departure.

If the last of three days before the issuance of vacation pay coincides with a weekend

As mentioned above, vacation pay must be issued no less than three days before the first day of vacation. The deadline for paying vacation pay in 2020 remains the same; no changes regarding statutory standards have been adopted.

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.

For example, an employee is scheduled to go on vacation starting May 10, 2017. His vacation pay must be paid no later than May 7. Considering that May 7 is Sunday, and May 6 is Saturday, the day the benefit is issued is shifted. Even if the accounting department works on Saturdays and makes a transfer to the card, the bank is not working, which means the employee will not receive the money. Therefore, payment of vacation pay must be made no later than May 4-5, 2022.

When should government employees be paid vacation pay?

How many days are paid vacation pay before civil servants go on vacation? In accordance with paragraph 10 of Art. 46 of the Law “On the State Civil Service” dated July 27, 2004 No. 79-FZ, the employer of a civil servant is obliged to transfer vacation pay to him 10 calendar days before the vacation.

Moreover, in this case, the norms enshrined in Law No. 79-FZ take precedence over those approved in the provisions of the Labor Code of the Russian Federation (Article 73 of Law No. 79-FZ). The norms of the Labor Code of the Russian Federation within the framework of labor relations with the participation of civil servants are applied if norms similar in focus are not contained in the specified federal law.

If a government employee's holiday pay is delayed, his employer may also be subject to penalties similar to those established for private employers. At the same time, “percentage” sanctions are applied specifically according to the Labor Code of the Russian Federation, since Law No. 79-FZ does not have alternative norms to them.

Tips for an accountant

If the accountant is late with the payment of vacation pay, you can agree with the employee to postpone the vacation. That is, propose to shift the vacation period by the number of days of delay. In this case, you will need to reissue your vacation documents.

If the employee’s vacation pay is not paid for any reason, he may refuse to take the vacation.

If the employee has already planned a vacation (tickets have been purchased) and does not want to reschedule the vacation, then you can offer him to take a couple of days of vacation at his own expense.

It happens that an employee submits an application for leave due to family circumstances late, often even literally the day before it starts. In such a situation, registering vacation, calculating and paying vacation pay on time is an impossible task. Therefore, despite the employee’s agreement to receive vacation money later, the employer, who took into account the circumstances and met the employee halfway, may find himself in violation of labor laws. In this case, the employee can also be asked to take several days of vacation at his own expense.

If the vacation cannot be rescheduled, the employer can pay vacation pay with a delay and voluntarily pay compensation for the delay in vacation pay.
Some employers ask the employee to draw up a statement of consent to delay vacation pay. We do not recommend drawing up such a document, as it violates the employee’s labor rights. When checking, the State Tax Inspectorate will definitely fine you.

To the point:

On vacation in 2022: calculation and payment of vacation pay. Cheat sheet for an accountant