Calculation according to Article 236 of the Labor Code of the Russian Federation. Theory of everything

If the employer missed the deadline for paying salaries to employees, you will have to pay compensation. Let's try to find out whether it is possible to avoid paying it or at least reduce the amount of payments.

From the article you will learn:

The procedure for paying salaries

The current requirements for the procedure for paying wages to employees are established by the provisions of Art. 136 of the Labor Code of the Russian Federation. In particular, it determines the terms of payment Money owed to the employee. In accordance with this article, a specialist must receive a salary at least twice a month. A greater frequency of payments can be set by the employer independently: labor legislation allows for such a possibility.

In addition, this article indicates that the period for payment of wages should not exceed 15 days from the moment when the period for which it is paid ended. Thus, the employer is obliged to pay the salary for the previous month no later than the 15th day of the month following it. However, our experts do not recommend paying money on the 15th: find out why - from this .

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Note! If the pay day falls on a weekend or holiday, it must be paid on the last working day before them.

Determining the timing of salary payments

The maximum possible period of payment of wages and its frequency are the main requirements for labor law to the employer in terms of his obligations to pay the employee. But the organization can choose the specific numbers for making such payments on its own, taking into account the specified conditions. It is advisable to fix them in the local regulatory document of the company or other documentation.

In this capacity, you can use:

1. internal rules work schedule(PVTR);
2. collective agreement;
3. individual labor contract with the employee.

You can specify the payment terms in one of these documents or in several of them. In the latter case, you need to pay attention to the fact that they match. But to use as a document that reflects the terms of payment of wages, the provision on remuneration, can be dangerous for the company, although this is not prohibited. In that we will discuss the possible consequences of such a decision.

Article 236 of the Labor Code of the Russian Federation: the responsibility of the employer for late payment of wages

Art. 236 of the Labor Code of the Russian Federation establishes the liability of the employer for violation of the approved terms for the payment of wages. It is implemented in the form of payment to the employee of financial compensation for the untimely issuance of money due. According to this article of the labor law, such compensation is transferred to the employee simultaneously with the payment of wages after the delay.

Note! The condition for the payment of compensation is applied in case of delay not only of salary, but also of vacation pay, compensation for unused vacation upon dismissal and other mandatory payments.

At the same time, both non-compliance with the requirements for the terms of payment of money, determined by labor legislation, and non-fulfillment of the conditions prescribed in the PWTR, collective or individual labor contract are considered a violation. In addition to liability, the company may be subject to administrative penalties under the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. The head of the organization responsible for the delay in payment may be held liable for the following types:

• administrative - according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation;
• disciplinary - under Art. 192 of the Labor Code of the Russian Federation;
• criminal - under Art. 145.1 of the Criminal Code of the Russian Federation, subject to mercenary or other personal intent.

Read more about how to apply these measures in this article. .

The amount of liability for delayed wages

According to Art. 236 of the Labor Code of the Russian Federation, the amount of the employer's liability for late payment of wages is set in a relative amount and depends on the key rate of the Central Bank of the Russian Federation. Recall that from March 26, 2018, its size is 7.25%. We talk about how this indicator affects the amount of liability in this article. . The minimum amount of compensation determined by Article 236 of the Labor Code of the Russian Federation is 1/150 this indicator for each day of delay. The countdown of the specified period begins on the next day after the date on which the employee was supposed to receive the salary, and ends on the day of its actual issuance.

If the salary was not paid to the employee not in full, but in part, this does not relieve the employer from applying financial liability measures to him. In this situation, its value will be calculated in proportion to the size of the employer's debt to the employee for wages.

Setting the amount of compensation

According to Art. 236 of the Labor Code of the Russian Federation, the main factor on which the amount of compensation to an employee for non-compliance with the terms of payment of wages depends is the value of the key rate of the Central Bank of the Russian Federation. When it is changed, the procedure for calculating compensation changes automatically: the current legislation does not provide for the need to issue any additional normative documents to resolve this issue.

Moreover, if the change in the size of the key rate occurred during the period of delayed payment of wages, the employer is obliged to calculate the amount of compensation for the periods of validity of different values ​​of this indicator, taking into account their actual values ​​on a specific date. Failure to comply with this requirement may result in .

The provisions of Article 236 of the Labor Code of the Russian Federation allow for a change in the amount of compensation at the initiative of the employer, but only upwards. Such an increased amount of payments must be documented in the internal labor regulations, a collective agreement or an individual labor contract with an employee. If the amount of compensation changes upwards, it is advisable to fix its new amount by an order that will amend the relevant document of the organization.

Note! An increased amount of compensation may also be established by a regional agreement in the subject of the Federation where the organization operates.

Conditions for payment of compensation

Unlike the procedure for applying criminal liability, the payment of compensation for the delay in the transfer of wages in accordance with Article 236 of the Labor Code of the Russian Federation is made without additional conditions. This means that the employer is obliged to compensate the employee for the specified delay, regardless of the reasons for its occurrence. These may be delays in the transfer of money due to the fault of the bank, complex financial position enterprises and any other factors. In all these cases, the obligation of the employer to pay compensation remains. For more information about the position taken by the courts on this issue, we tell in this article. .

Procedure for payment of compensation

By general rule compensation for the delay in the issuance of wages, provided for in Art. 236 of the Labor Code of the Russian Federation, is paid to the employee simultaneously with the repayment of the debt that has taken place. In this case, the relevant information must be included in the employee's pay slip along with the rest of the components of his salary. If the organization does not pay compensation in voluntary, the employee has the right to apply to the court to restore his rights, as well as to recover compensation for moral damage and losses incurred by him as a result of inflationary processes. In this case, it is likely that the court will take the side of the employee: clearly confirms this opinion.

The employer can fix the amount of compensation within the limits established by the current legislation, or in an increased amount in the PWTR, collective or individual labor contract. If the condition on the amount of compensation is not indicated in any of these documents, it is calculated in the manner determined by the provisions of Art. 236 of the Labor Code of the Russian Federation.

Compensation example

The amount of compensation established by Article 236 of the Labor Code of the Russian Federation is calculated as the product of the amount of the employer's debt to the employee, 1/150 of the refinancing rate of the Central Bank of the Russian Federation and the number of days of non-payment of wages.

For example, LLC "Company" delayed the payment of wages to an employee Ivanov A.A. for 12 calendar days. The total amount of debt on the twelfth day, starting from the date of payment of wages established by the employment contract, is 15 thousand rubles.

Thus, compensation for the delay will be calculated as follows: 15,000 (amount of debt) * 1/150 * 7.25% (refinance rate share for each day of delay) * 12 (number of days of delay). As a result, the amount of compensation for the specified period will be 87 rubles.

In order not to make mistakes in complex calculations, use our convenient payments under Art. 236 of the Labor Code of the Russian Federation.

1. Labor legislation establishes the material liability of the employer in case of violation of the established deadline for the payment of wages, vacation pay, settlement upon dismissal and other payments due to the employee.

2. For the terms of payment of wages, vacation pay, see Art. 136 of the Labor Code, on settlements upon dismissal - Art. 140 TK.

In order to receive monetary compensation in advance written request not required by the employer. If he violates the established payment terms, the employer calculates monetary compensation, taking into account the days of delay, and pays it to the employee. Article 236 of the Labor Code of the Russian Federation obliges the employer to pay the due compensation simultaneously with the delayed salary. Therefore, monetary compensation for the entire time of delayed payment of wages until the day of actual settlement should not be paid later than the day when the employer paid the employee the delayed wages.

By Directive of the Central Bank of the Russian Federation of November 28, 2008 N 2135-U "On the size of the refinancing rate of the Bank of Russia" (Bulletin of the Bank of Russia. 2008. N 69), the refinancing rate of the Central Bank of the Russian Federation from December 1, 2008 was set at 13.0% per annum.

An exception to general conditions party's liability employment contract provided for in Art. 233 of the Labor Code, is the imposition on the employer of the obligation to pay monetary compensation, regardless of the presence of his fault, which increases the level of protection of the interests of the employee.

When considering a dispute that arose in connection with the refusal of the employer to pay the employee interest (monetary compensation) for violation of the deadline for paying wages, vacation pay, payments upon dismissal and other payments due to the employee, it must be borne in mind that in accordance with Article 236 of the Labor Code of the Russian Federation the court has the right to satisfy the claim, regardless of the fault of the employer in delaying the payment of the indicated amounts (paragraph 55 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

3. Imposing on the employer the obligation to pay the specified monetary compensation does not deprive the employee of the right to apply to the court for a court order on the basis of Art. 122 of the Code of Civil Procedure, if a claim is made for the recovery of accrued but not paid wages to the employee. A court order (judgment) issued to an employee on the recovery of wages is at the same time an executive document.

4. The provision on the payment of monetary compensation to an employee does not apply if a dispute arises between the employee and the employer regarding the right to receive this payment, for example, about payment for overtime work performed.

5. The fixing of the right of an employee to receive monetary compensation for the time of delayed payment of wages does not limit his right to indexation of the amounts of delayed wages due to an increase in consumer prices for goods and services (see Article 134 and commentary to it).

6. In the sectoral tariff agreements being concluded, the amount of monetary compensation for delayed payment of wages is set at a higher rate compared to the legislation:

• the time of suspension of work in the event of a delay in the payment of wages for a period of more than 15 days is paid in the amount of average earnings (Sectoral tariff agreement in housing and communal services Russian Federation for 2008 - 2010, Industry tariff agreement for organizations and enterprises of the sphere consumer services population for 2008 - 2010);
• the amount of compensation for each calendar day of violation of the established deadlines for the payment of wages or amounts due to the employee upon dismissal is set at least 1/200 of the refinancing rate of the Central Bank of the Russian Federation in force on the day of the established payment period (Federal Industry Agreement on aviation industry Russian Federation for 2008 - 2010).

If the collective or labor agreement determines the amount of interest payable by the employer in connection with the delay in the payment of wages or other payments due to the employee, the court calculates the amount of monetary compensation taking into account this amount, provided that it is not lower than that established by Article 236 of the Labor Code of the Russian Federation. The accrual of interest due to late payment of wages does not exclude the right of the employee to index the amounts of delayed wages due to their depreciation due to inflationary processes (paragraph 55 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

7. For the deadline for applying to the court regarding the recovery of accrued but unpaid wages, see comment. to Art. 392.

ST 236 of the Labor Code of the Russian Federation.

If the employer violates the established deadline, respectively, for the payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with the payment of interest (monetary compensation) in the amount of not less than one hundred and fiftieth of the key rate in force at that time the Central Bank of the Russian Federation from the amounts not paid on time for each day of delay starting from the next day after the established payment deadline up to and including the day of actual settlement. In case of incomplete payment of wages and (or) other payments due to the employee on time, the amount of interest (monetary compensation) is calculated from the amounts actually not paid on time.

The amount of monetary compensation paid to an employee can be increased by a collective agreement, local normative act or an employment contract. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer.

Commentary on Art. 236 of the Labor Code of the Russian Federation

1. The Labor Code has expanded the list of situations related to the delay in various payments, in which the employer is liable. Now it can occur not only with the delay in the actual wages, but also in other cases. The commented article defines at least three options for bringing the employer to liability for the delay in payments due to the employee. This does not exclude other payments due to the employee.

2. The obligation to pay the specified monetary compensation arises regardless of the fault of the employer, which, of course, increases the guarantees for the employee. After all, it is the employer who is the participant economic activity bearing all risk and all responsibility for its results. If this situation occurs in budget organizations, then the responsibility should be shared by the state or municipalities, from the budget of which the activities of this employer are financed.

The corresponding position is also reflected in the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation." When considering a dispute that arose in connection with the employer’s refusal to pay interest (monetary compensation) to the employee for violation of the deadline for paying wages, vacation pay, dismissal payments and other payments due to the employee, it must be borne in mind that, in accordance with the commented article, the court has the right satisfy the claim, regardless of the fault of the employer in delaying the payment of the indicated amounts (paragraph 55 of the said Resolution).

3. If a collective agreement or an employment contract determines the amount of interest payable by the employer in connection with the delay in payment of wages or other payments due to the employee, the court calculates the amount of monetary compensation taking into account this amount, provided that it is not lower than that established by the commented article.

The accrual of interest due to late payment of wages does not exclude the right of the employee to index the amounts of delayed wages due to their depreciation due to inflationary processes.

4. About the terms during which the employee has the right to apply to the court on the issue of collecting payments due to him, see Art. 392 of the Labor Code of the Russian Federation.

In Art. 236 of the Labor Code of the Russian Federation spells out the liability that the employer bears for the untimely transfer of any types of payments to the employee, whether it is a dismissal benefit or compensation due for unused vacation. If such an unpleasant story happened to a person, he should carefully study all the amendments made to the current legislation in different periods of time.

Basic concepts and comments

Unfortunately, situations when an employer refuses to fulfill its obligations to a subordinate, thereby violating his rights, are not uncommon, but this is not at all a reason to put up with it and not defend one's own interests in the relevant authorities. But before filing a complaint, it does not hurt to familiarize yourself with the main provisions of Article 236 of the Labor Code of the Russian Federation that regulates this issue.

In the event of a delay or refusal to pay the due Labor Code or a benefit contract, the employer is subject to penalties that are cumulative with the outstanding debt. Typically, the amount of the fine is determined at the rate of the Central Bank, in force at the moment and corresponding to 1/300 of the amount of the unpaid benefit. At the same time, a kind of accumulative system is used, which makes it possible to take into account each subsequent day of downtime up to the payment of monetary compensation and the foam attached to it (this day also applies to settlement days).

The amount of compensation can be regulated upwards in accordance with regulatory documents - a collective or labor agreement, as well as local acts accepted by the employer within its competence in full accordance with the current labor legislation.

As for the timing, interest begins to automatically accumulate from the moment the employer fails to fulfill its own obligations to the employee, that is, from the next day after the official dismissal.

In the event that an employee does not receive a severance or any other benefit through no fault of the enterprise, the obligation to pay off the resulting debt is still assigned to the employer. All other provisions are given in Art. 236 of the Labor Code of the Russian Federation in new edition with comments from 2017-2018. The main ones are:

Starting from December 1, 2008 and up to the present day, a 13% annual refinancing rate is in effect at the exchange rate of the Central Bank of the Russian Federation. It is this value that is used to calculate compensation for delayed wages under Art. Labor Code of the Russian Federation 236. At the same time, Art. 233 “Conditions for the onset of material liability of a party to an employment contract” provides for certain exceptions, among which it is worth highlighting the imposition of debt obligations on the employer for the employee’s failure to receive benefits and compensation for the delay, regardless of the fault of the former.

The enterprise may have its own rules for calculating penalties for late cash payments, but in any case they should not be less than the norms established by the labor legislation of the Russian Federation. These rules and the absence of any exemptions for employers have been designed to ensure that employees can feel as secure as possible.

Payment types

Not all employees of the enterprise are eligible for material assistance under the Labor Code of the Russian Federation (Article 236), but only those who fall under certain categories. It's about about the following people:

In accordance with the current Art. 236 of the Labor Code of the Russian Federation with comments 2017 dismissal of employees in without fail involves two types of payments - severance pay and compensation for unused vacation or its individual days.

However, the benefit options covered by this regulation do not end there. So, This list also includes the following types of payments:

In all of these situations, the employee has the right to claim monetary compensation, however, the algorithm for calculating its size can change significantly. In addition, each benefit option has its own deadlines for starting the calculation of interest.

Penalty charge

Calculation of compensation for delayed payment

To calculate the amount of a fine for late repayment of debts to an employee, a special formula is provided. According to current legislation in practice, the C3 x KS / 100 / 150 x KDZ algorithm is used, where:

In this case, the total amount of the debt is taken into account, minus all taxes, insurance fees and penalties (damage to property, alimony, etc.), that is, the employee must receive it in full. This point should also be taken into account, studying it in more detail in Art. 236 of the Labor Code of the Russian Federation with comments. Calculation example for 2017:

This means that on the day the debt is paid wages the employer is obliged to pay the employee compensation in full. In the example under consideration, the total amount of the “net” cash payment was 39986 + 319.88 = 40 thousand 305 rubles 88 kopecks.

With the employee, they begin with the conclusion of an agreement with the employer. The agreement prescribes the conditions for the implementation of activities, duties, responsibilities, rights of the parties. A separate clause of the contract is devoted to the procedure for remuneration. In case of violation of the terms of the agreement, liability is provided for in the legislation. In particular, if the employer fails to comply with the terms of payment of wages, vacation pay and other amounts due to personnel, the provisions of Art. 236 of the Labor Code of the Russian Federation. Let's take a closer look at this rule.

Art. 236 of the Labor Code of the Russian Federation (2016)

In case of violation by the employer of the terms of payment of earnings, vacation pay and other amounts due to the employee, the employer must pay off the resulting debt with the payment of interest. When calculating them, 1/150 of the Central Bank refinancing rate is used, which is valid at the time of default. Interest is calculated from the amounts not paid on time from the day following the due date of payment, for each day. In Art. 236 of the Labor Code of the Russian Federation provides for measures in the event of partial repayment of wage arrears and other funds that are due to an employee. In this situation, the amount of interest is determined based on the funds actually not accrued to him. As Art. 236 of the Labor Code of the Russian Federation, a collective / labor agreement, another internal document of the company may provide for the possibility of increasing the amount of monetary compensation. The obligation to pay interest arises regardless of the establishment of the fault of the employer.

Art. 236 of the Labor Code of the Russian Federation with comments

According to the current regulations, the employer is obliged to pay remuneration to the employee, vacation pay and other amounts established by the labor / collective agreement, rules of procedure and other local documents in a timely manner. At the same time, as Article 136 of the Code indicates, accrual is made at least 2 times a month. The amount of earnings is determined by the position held, the qualifications, specialty, qualitative and quantitative production indicators. Its maximum value is not limited. Delays in the transfer of salaries indicate gross violations labor standards. Responsibility arises for relevant actions, including Art. 236 of the Labor Code of the Russian Federation.

Calculation example

According to the instructions of the Central Bank, the refinancing rate is 9.75%. Let's see how it is applied within Art. 236 of the Labor Code of the Russian Federation. Example will be next. According to the collective agreement, the employer must pay wages for the 2nd half of the month no later than the 5th day of the subsequent period. The amount of salary is 8 thousand rubles. Suppose that the employee received the amount due only on the 23rd. At the current rate, the amount of compensation is equal to:

8,000 x 1/150 x 9.75% x 18 days = 9 rubles. 36 kop.

Accrual is carried out for each overdue day until the actual repayment of the debt.

Suspension of work

In addition to Art. 236 of the Labor Code of the Russian Federation, other measures may be applied to the employer. So, if the delay in earnings was more than 15 days, then the staff has the right to suspend their activities at the enterprise, notifying the management about this. Meanwhile, from this rule there are a few exceptions. Suspension of work is not allowed:

Amounts of payments for basic and additional holidays

Labor legislation establishes a large number of norms that allow citizens to exercise the right to rest when entering into legal relations with an employer. Paid vacation is granted annually. Its duration is 28 days (calendar). The legislation also provides for a longer period. In addition, the rules establish the possibility of granting additional holidays. When considering disputes concerning them, a number of nuances should be taken into account. First of all, the persons defined by Article 116 of the Labor Code, as well as other employees, in accordance with the law, have the right to an additional period of rest. At the same time, it must be taken into account that the provisions contained in collective agreements, local documents and regulating the procedure for granting such holidays, which worsen the conditions for employees in comparison with the rules provided for in legal acts, cannot be applied by the court. By virtue of Art. 8 and 5 of the Code, they are considered invalid. Part of the leave at the request of the employee may be replaced by a cash payment. At the same time, the law prohibits compensating rest days for pregnant women, underage workers, citizens employed in heavy or harmful conditions production. In the event of termination of the contract with an employee, vacation pay, along with other amounts, is paid on the day of dismissal. If at that moment the citizen was not at the enterprise, then the funds must be transferred to him no later than the day following the submission by the person of the request for settlement. If a dispute arose over the amount due to a citizen, the employer must transfer the undisputed funds within the period specified above. The rest of the employee has the right to collect through the court.

Features of the proceedings

In the event of a claim being filed by an employee who is labor relations with the employer, regarding the delay in the payment of funds due to the plaintiff, a number of important points. First of all, the employer's petition for the subordinate to miss the deadline for applying to the authority cannot in itself act as a basis for refusing to satisfy the claims. In this case, the statute of limitations established by law is not considered to be missed, since the employer's violations are classified as ongoing.