Delay of wages: payment terms, algorithm of actions in case of delay

Formation of wages

From the point of view of the law, wages are the measure of remuneration of an employee for work performed. The basis for issuing wages is an employment contract concluded between the employee and the employer, which contains the working conditions, as well as the amount of salary, the procedure for calculating additional payments (for example, overtime, bonus payments). In accordance with the Labor Code of the Russian Federation, an employee’s salary is divided into 3 parts:

Salary is a fixed part of the salary, which is calculated taking into account the days worked in the month, based on the working day report card.
Compensation payments - supplements and bonuses that compensate for the peculiarities of working conditions (northern allowances, for overtime work, pay for weekends and holidays, etc.).
Incentive payments are a motivational component aimed at increasing labor productivity and compensating for an increase in the efficiency of the employee in performing his or her job duties. Incentive payments are divided into:

constants, depending on the work performed;
one-time – one-time payments for holidays, 13th salary, others.

The procedure for issuing and the amount of permanent incentive payments are usually noted in the annex to the employment contract. The employer does not have the right to independently change the amount of this payment down or completely exclude it from the salary.

Important! Any unlawful change in the permanent part of the salary that violates the legitimate interests of the employee can be challenged in court.

In turn, we note that the one-time part of the payment is a manifestation of the employer’s goodwill, and, accordingly, if it is excluded from the salary, it will be impossible to restore the one-time payment even in court.

Basics of labor legislation

Before talking about the situation when an enterprise does not have enough funds to pay wages, it is generally necessary to understand in what time frame the payment should occur and with what frequency. These essential aspects of labor activity are stipulated by the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

In accordance with Art. 136 of the Labor Code of the Russian Federation, wages are paid at least every half month. Thus, twice a month the employee must receive the money he earned - an advance payment and a final payment for the reporting period.

The Labor Code of the Russian Federation does not establish the specific time frame for payment of wages, leaving this to the discretion of the management of the organizations themselves (the time limits are set by employers in the internal labor regulations, collective and/or labor agreements).

True, the Labor Code limits the period for payment of wages to a period no later than 15 calendar days from the end of the month for which it was accrued. And specialists from Rostrud (letter dated June 20, 2014 No. PG/6310-6-1) and the Ministry of Labor (letter dated November 28, 2013 No. 14-2-242) insist that in the local regulatory act, collective agreement (if any), labor The contract must indicate specific payment dates, and not periods during which wages can be paid.

Such an opinion is justified and in accordance with the legislation is recognized by the Order of Rostrud dated April 19, 2016 No. 130 “On measures to improve the efficiency of the activities of territorial bodies of the Federal Service for Labor and Employment in ensuring the repayment and elimination of wage arrears” (together with the “Basic principles of organizing work on arrears of wages (payment of wages to employees).”

A similar point of view was expressed in a very “fresh” letter from the Ministry of Labor of Russia dated March 12, 2019 No. 14-2/OOG-1663.

An exception to the strict specificity of the payment date is made for incentive payments. The letter of the Ministry of Labor of Russia dated 09.23.2016 No. 14-1/ОOG-8532, the Letter of Rostrud dated 09.26.2016 No. TZ/5802-6-1 states that if internal regulations stipulate the payment of bonuses to employees based on the results for a period specified by the bonus system , for example, for a month, in the month following the reporting month, or a specific date for its payment is indicated, and based on the results of work for the year - in March of the next year, or a specific date for its payment is also indicated, then this will not be a violation of the requirements of Part 6 of Art. 136 Labor Code of the Russian Federation.

Thus, a delay in the payment of wages can be considered non-payment of wages on a specific day or non-payment of a bonus during a specific period specified in the local labor acts of the enterprise.

Example 1

The enterprise has a Regulation on Remuneration, according to which wages must be paid to the organization twice a month within the following periods:

• 14th (fourteenth) day of the current month - advance payment;

• on the last working day of the current month - final payment.

The annual bonus is paid in March of the year following the reporting year.

Therefore, any payments made later than due will constitute a delay in payment of wages.

The legislation also considers wage arrears to be a situation where wages are paid, but in a smaller amount than required. For example, instead of 20,000 rub. only 19,000 rubles are paid. - the amount of underpayment is unpaid wages.

So, if an organization does not have money to pay wages, in order to get out of this difficult situation, it is necessary to accurately assess the cost of such actions: it is necessary to plan both the amount of the debt itself that needs to be repaid, and the amount of various potential sanctions that accompany the delay in the payment of wages and which can amount to significant amounts.

And for this you need to know well what liability for delayed wages is established by regulatory documents.

Deadlines for salary payments

The procedure for issuing wages to employees is regulated by Art. 136 of the Labor Code, according to which payment must be made at least 2 times a month with a difference in the issuance of payments of no more than 15 days. Basic monthly payments to employees consist of two parts:

advance – calculated on the basis of actual time worked, paid in the period from the 15th to the 31st of the current month;
final payment - the remainder of the salary, paid from the 1st to the 15th of the following month.

Important! In accordance with the new rules for issuing wages, which came into force on October 3, 2016 and are in effect to this day, the final date for settlement with an employee is the 15th day of the following month.

The internal regulations of the enterprise must specify the days for issuing the advance payment and the final payment; compliance with them is the responsibility of the employer. In case of violation of the terms of payment of one part of the salary, a fine of 50,000 rubles will be imposed on the head of the enterprise. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). If the day of payment of the advance payment or final settlement falls on a weekend or holiday, they must be issued on the last working day before their occurrence. When dismissing an employee, all due payments, including wages worked, must be made no later than the last working day. If an employee goes on vacation with subsequent dismissal, payments are made the day before the start of the vacation.

Important! In accordance with the letter of the Federal Tax Service No. ZN-4-17/15799 dated August 29, 2016, wage payments to a non-resident employee of the Russian Federation cannot be made in cash, only through a bank account.

Delay in payment of wages occurs the very next day after the due date.

How should salaries be paid?

According to Art. 136 and 140 of the Labor Code of the Russian Federation, salaries are paid at least every half month. At the same time, it is also mandatory to issue a pay slip, the form of which is approved by the employer. It is noted there:

salary elements that are due to the worker for the appropriate time;
other accrued to the worker (compensation for the employer’s violation of deadlines for paying wages, vacation pay, dismissal payments, other payments);
deductions with their amount and reasons;
total payment amount.

The specific date of payment is stipulated by the internal labor regulations, collective or employment agreement. It may be distant from the end of the period that is paid by a maximum of 15 calendar days.

If the date coincides with a weekend or non-working holiday, wages are paid the day before.

Vacation pay is paid at least three working days before the start of the vacation.

Compensation for delayed wages

In accordance with Art. 142 of the Labor Code of the Russian Federation and Art. 5.27 of the Code of Administrative Offenses, for each day of delay in payment of wages, an employee is entitled to a compensation payment. According to Art. 236 of the Labor Code of the Russian Federation, the amount of compensation is 1/150 of the refinancing rate established by the Central Bank of Russia for each day of delay, starting from the moment the salary is paid.

Important! Compensation for delayed wages is made based on the results of inspections by the labor inspectorate or a court decision.

Where and when to complain about an employer for non-payment of wages

The employee has the right not to wait for a voluntary transfer of wages from the company, but to immediately file a complaint with the regulatory authorities or file a claim in court. A labor dispute claim is submitted to the labor inspectorate, prosecutor's office or court.

The labor inspectorate, based on an employee’s application or on behalf of the prosecutor’s office, conducts an extraordinary inspection of the employer and forces him to fulfill his obligations to pay wages. In addition, the company will be subject to a significant fine for violating labor laws:

from 30,000 to 50,000 rub. — on the organization;
from 10,000 to 20,000 rub. - to an official.

The employee has one year from the date of non-transfer of wages to file a claim in court (Part 2 of Article 392 of the Labor Code of the Russian Federation).

What should an employee do if their salary is delayed: algorithm of actions

From the first day of delay in payment of wages, an employee officially employed under an employment contract has the right to demand payment of compensation from the employer. However, it is important to understand here that if you don’t take the initiative yourself, you can’t even dream of any additional payments. First of all, the employee must contact the labor inspectorate at the location of the organization with a written statement, in which he freely indicates the violated rights (the fact of delayed wages, the number of days of delay, the delayed amount). Based on the results of consideration of the application, the labor inspectorate will conduct an inspection of the enterprise and make a decision in favor of the employee whose rights were violated. The next step, if an appeal to the labor inspectorate did not produce any results and the delay was more than 15 days, the employee has the right to suspend his work until the actual payment of the wages due to him. The employee must notify the employer in writing about the fact of stopping activities, referring to the provisions of Article 142 of the Labor Code of the Russian Federation.

Important! The following persons do not have the right to suspend work, even in case of delay in payment of wages: employees of government agencies, workers whose activities are related to the maintenance of hazardous types of equipment and production, as well as ensuring the livelihoods of citizens (emergency medical personnel, workers of power plants, energy supply) , military personnel and employees of military and defense enterprises, organizations aimed at state security, employees involved in search and rescue, fire rescue operations, disaster relief and emergency management.

Simultaneously with the suspension of work, the employee whose rights have been violated has the right to file a claim to recover from the employer arrears of wages and compensation for each day of delay. If wages are delayed for more than 3 months, the employee has the right to file a complaint with the prosecutor's office. In this case, the actions of the employer that violate the rights of the employee will be considered under Art. 5.27 Code of Administrative Offenses and 145.1 of the Criminal Code of the Russian Federation.

What to do if your salary is late

If wages are delayed by more than 15 days from the due date, send a written notice to your superiors and you may not appear at work until the due amount is paid. At the same time, you retain your average earnings. This right is granted to hired employees by Article 142 of the Labor Code of the Russian Federation. The exceptions are:

military, police, rescuers and firefighters;
civil servants;
workers in particularly hazardous industries;
representatives of enterprises directly involved in ensuring the life of the population (ambulance, heating, electricity and gas supply, etc.).

The written notice is drawn up in free form, but there are certain requirements for its content. You must:

write to whom the document is addressed (company name, position and full name of the manager);
indicate the sender's details (full name, position and postal address - yours or several employees, if the appeal is collective);
describe in detail the violation committed by management, mentioning the exact dates of payment of wages and the period of delay;
ask for the start of written negotiations to clarify the causes of the incident and eliminate the consequences.

If negotiations with the director of the enterprise do not produce results, use the possibilities of special authorities.

Delay of wages: employer's responsibility

Violations of labor and financial law regarding delays in wages to employees of an enterprise entail the following types of liability: 1. Administrative (material). From the first day of late wages, the employer bears financial responsibility. In addition to the fact that the employer will have to pay compensation to the injured employee for each day of delay, he will be fined under Art. 5.27 Code of Administrative Offenses of the Russian Federation in the amount of:

from 1000 to 5000 rubles – for individual entrepreneurs;
from 10,000 to 20,000 rubles – for officials;
from 30,000 to 50,000 rubles – for legal entities.

If a repeated violation of the Labor Code of the Russian Federation is established regarding non-payment of wages to employees under official employment contracts, penalties are increased, their amount will be:

from 10,000 to 30,000 – for individual entrepreneurs;
from 20,000 to 30,000 – for officials;
from 50,000 to 100,000 – for legal entities.

2. Disciplinary. If it is admitted that wages are delayed due to the fault of an official, by decision of the labor inspectorate, he will bear disciplinary liability, providing for removal from his position for a period of 1 to 3 years (Part 1 of Article 357 of the Labor Code of the Russian Federation). 3. Criminal. Repeated violations of labor legislation, in particular evasion of paying wages, pensions and other payments due to your employees, may result in criminal liability with the following types of penalties:

a fine of up to 500,000 rubles;
a fine in the amount of wages or other income received by the offender during the last 3 years;
deprivation of the right to engage in a certain type of activity or hold certain positions for a period of up to 5 years;
forced labor for up to 3 years;
imprisonment for up to 5 years.

Important! Criminal liability arises in relation to the head of an organization, regardless of whether he is an individual (IP) or a legal entity (Article 145.1 of the Criminal Code).

Criminal liability

According to Art. 145.1 of the Criminal Code of the Russian Federation, a fine for non-payment of wages is imposed on the head of an enterprise, an individual employer, or the head of a particular structural unit of the company, if such non-payment was committed by them for selfish or other personal interest.

For partial non-payment (less than 50% of the due amount) for more than three months, the fine will be up to 120,000 rubles. or will be equal to the income of the convicted person for a maximum of one year. Other punishment options for this act are a ban on holding specific positions or engaging in certain activities for a period of up to a year, or forced labor for a period of up to two years, or imprisonment for a maximum of one year.

For complete non-payment of earnings that lasts more than two months, you will be fined 100,000–500,000 rubles. or the amount of the offender’s income for a maximum of three years. Other punishment options in this case may be either forced labor for up to three years with a ban on holding certain positions or carrying out specified activities for the same time or without it, or imprisonment for a maximum of three years with a ban on holding specific positions or working in a certain way ( or without it) for a maximum of three years. Similarly, they will be punished for paying wages below the minimum wage (currently 11,163 rubles) if this continues for more than two months.

In case of serious consequences (loss of ability to work, illness, death of a person, damage or loss of property, graduation due to the inability to pay for it, etc.) that resulted from the above acts, penalties will increase as follows:

fine for late wages - 200,000–500,000 rubles. or the offender’s income for one to three years;
imprisonment - two to five years plus a ban on holding certain positions or engaging in any activity (or without it) for a maximum of five years.

How can employees protect their interests? Official employment!

The rights and interests of officially employed citizens are protected at the legislative level; accordingly, any violations by the employer, primarily related to timely payment of wages, are considered by state law enforcement agencies and in court. In turn, employees working without an employment contract cannot count on legally guaranteed wages and compensation payments in case of violation of salary payment deadlines. Employers who pay wages “in an envelope” try to avoid paying taxes and insurance contributions, avoiding interaction with the state, and, thus, not providing their employees with any guarantees for the protection of legal rights and interests.