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Wage debt what to do. Wage arrears: how to collect debt. Calculation of the claim amount

30.11.2023

For allowing arrears in labor payments, a number of administrative penalties are provided for the employer. An employee has the right to apply for recovery; to which authorities should he apply and in what order? Read more in this article about the consequences for an employer if such a violation occurs.

How does it arise

By law, wages must be paid twice a month. This is provided. If payments are not made at least once, a debt arises. Most employees expect the company to start making payments regularly and paying off debts, but often this does not happen. What should staff do in the event of regular violations of workers’ rights and where should they go?

In addition to the principal amount of debt, the demand may include a penalty for each day of delay and the amount of moral compensation.

Where to go

If a delay occurs and a debt arises, the employee has three options:

  • write an application to the labor inspectorate, especially if non-payments are regular;
  • file a complaint with the prosecutor's office;
  • draw up a statement of claim in the magistrate’s court for debts amounting to less than 50 thousand rubles. and to a court of general jurisdiction - if this limit is exceeded.

There are three ways to contact the Labor Inspectorate:

  • independently during a personal visit to a department of a government agency;
  • through the website;
  • by mail.

The commission considers the application within 30 days.

The application form is available on the website onlineinspektsiya.rf. It is enough to fill out its fields, attach scans of documents and you can send it to the Labor Inspectorate. There is no need to pay a state fee as for claims in court.

Based on the results of the inspection, the employer receives a notification with a requirement to eliminate the violation and possible consequences. Guilty persons, such as an accountant or director of an enterprise, may be held administratively liable personally if the delay occurred through their fault on the basis of Article 360 ​​of the Labor Code of the Russian Federation.

In addition to administrative liability, the employer may be held liable on the basis of the provisions of the Criminal Code of the Russian Federation. Such punishment will follow if the delay is more than 60 days.

It is advisable to send a complaint to the Prosecutor's Office simultaneously with an application to the Labor Inspectorate. You need to submit your application at the location of the organization, not the head office, this will speed up the verification and receipt of the result.

There is no unified form for such complaints. The main thing is that it contains all the necessary information to consider the dispute: the name of the company, full name of the employee, their addresses, contact numbers, email, etc. The document is signed personally by the citizen or, in the presence of a representative, by a lawyer on the basis of a notarized power of attorney.

If the employee’s demands for debt collection do not yield results, the following methods of influence can be used:

  • Suspension of activities under an employment contract. If the salary is not paid on the 15th day, the employee has the right not to go to work. He is obliged to notify the company about this in writing. It is necessary to draw up a notice of suspension of work due to delay in payment of wages in two copies. One is certified by the employer as having been received with a mandatory date stamp; you can put it at the secretary or send a letter by mail with notification. The second copy must remain in the hands of the employee as a justification for absence from work. The average salary is retained by the employee in this case if he does not fulfill the duties stipulated by the employment contract.

Important: Not all employees have the right to suspend activities in case of delays in payment of wages. These include citizens serving in the military part of Russia, holding government positions, working in hazardous industries, and employed to ensure the interests and protection of the state.

  • Appeal to the Labor Dispute Commission (LCC). The body is formed 50% from the trade union and half from representatives of the employer. The main function of the body is to protect workers' rights. The competent authority considers disputes regarding delayed payment of wages delayed for a period of at least 3 months. Resolution of the issue takes up to 10 days. If personnel have financial claims against the organization, the CCC reviews the claims. If they are justified and satisfied, a corresponding statement is made against the employer. When he ignores or refuses to fulfill financial requirements, the CCC issues a resolution that has the force of an executive document and is mandatory for execution by the organization.

The application to any authority shall indicate the circumstances of the violation of labor rights. It contains the name of the employer, its actual location, full name or full names of employees if the complaint is of a collective nature, communication data: email, residential address, mobile phone number.

If the salary is accrued, but the calculation is not made, the employee can also submit a letter of resignation by notifying management 2 weeks in advance. When arrears in labor payments have not been repaid, you do not need to take 14 days off; you can immediately stop working. On this basis, the employer has the right to immediately release the employee by accepting the application.

Collection of arrears of wages

When going to court or other authorities to resolve disputes, it is advisable to file a claim at the actual location of the branch of the organization where the employment relationship was directly carried out, and not at the legal address where the head office is located.

If there is no benefit from contacting authorized bodies for resolving labor disputes, then you should go straight to court, especially since the time frame for considering applications has been simplified - a court order is issued within 5 days. Its action in legal nature is equal to the executive document in accordance with.

The parties to the dispute are usually not summoned; the decision is made on the basis of the submitted documents and calculations. A participant in the process who does not agree with the decision made or the figures indicated therein may cancel the court order by filing a corresponding application within 10 days from the date of receipt of the decision.

If it was sent by mail and the time has passed, then you need to attach to the cancellation application a petition to restore the deadline, attaching evidence of receipt of the letter later.

In addition to the amount of the principal debt, the application must provide a calculation of compensation - property in the form of a penalty for each day of delay and moral damage - the amount indicated is an estimate, accepted based on judicial practice. Moral damage is also proven if a citizen has health problems due to non-payment of funds, you must attach certificates from the hospital about unsatisfactory health, calling an ambulance, taking sedatives, etc. This is explained in and paragraph 63 of the Plenum of the RF Armed Forces of 2004, No. 2.

The order is transferred for execution to the SSP of the Russian Federation - bailiffs for enforcement. An inventory and seizure of funds in current accounts and property of the enterprise is carried out in order to ensure payment of the debt.

If the employer refuses to cover the debt, the assets are sold at auction and the debt is closed. All these actions must be carried out as soon as possible. If the bailiff does not take any action to collect the debt, you should write a complaint against him to the head of the branch of the SSP of the Russian Federation, to a higher authority or to the court.

A court order in a labor dispute is subject to immediate execution. If a long period of time has passed since the decision was made, the plaintiff has the right to demand indexation of payments.

If an application to cancel the court order is received within 10 days, then a ruling is issued explaining the possibility of presenting claims through litigation.

How to calculate for each overdue day

In addition to the basic salary, in case of delay, employees can also claim a penalty for violating the terms of the employment contract. Its size is 1/300 of the Central Bank refinancing rate for each day.

Statute of limitations

Based on this, 3 months are allocated for filing an application from the moment the citizen learned of a violation of his right. Compensation is subject to payment along with the principal amount of the debt; accordingly, the same statute of limitations applies to its presentation.

If the employee has an ongoing employment relationship, that is, has not terminated the contract with the employer, then the statute of limitations of 3 months is not applicable in such cases. The justification is Resolution of the Plenum of the RF Armed Forces of the RF Armed Forces dated March 17, 2004 N 2. In this case, the employer’s petition for the expiration of the statute of limitations will be rejected, and the claim will be considered in full.

The limitation period is interrupted:

  • sending a claim to the employer;
  • reconciling settlements with the employee, accruing new amounts, compensation;
  • conducting negotiations, which must be certified by the relevant act;
  • filing an application with the Labor Inspectorate, the Prosecutor's Office, and the judicial authorities.

Important: a claim on the same basis is accepted and considered only once. Repeated submission of an application, for example, for the recovery of accrued but unpaid wages for the same period, is prohibited.

What should an employer do?

In order not to spoil the reputation, not to bring the enterprise to bankruptcy and not to impose fines, it is necessary to allocate funds for payments under employment contracts. Such a violation may not only lead to the imposition of administrative liability, but may also threaten the suspension of the production process at the enterprise.

Perhaps, for proper planning, you should refuse other urgent payments, for example, for supplies, purchase of materials, etc.

What to do if wage arrears arise during bankruptcy? When opening insolvency proceedings against a legal entity, wage payments are paid in order of priority. If there is a debt, you must provide evidence of its existence to the insolvency practitioner, who will enter it into the register.

When a dispute arises, you should apply to the judicial authorities with a claim and present the head of the enterprise with an act that has entered into force. Payments are made from assets: funds in current accounts or the sale of liquid property.

Video: Salary arrears

    Wage arrears arise when the employer fails to pay them. The responsibility for timely payment is imposed on him by labor legislation. It must be done twice a month. The salary specified in the employment contract should not be lower than the minimum wage, which is subject to indexation every year.

    In case of delay, the employee has the right to suspend work if the delay is more than 15 days (Article 142 of the Labor Code of the Russian Federation). To do this, he sends a corresponding notification. The employer is obliged to eliminate the problems that prevent him from paying remuneration for work and notify him in writing of the payment. After this, the employee is required to start work the next day.

    But what to do if they refuse to pay wages in accordance with the established procedure? In our article we will look at how to collect debt and which authority you need to contact to do this.

    Collection of arrears of wages

    If you were given a work book upon dismissal, but your salary was not paid, or there are systematic delays in payments, you should collect wage arrears. It will be easier to collect the official salary on which taxes were paid. You don't have to fight the employer alone, as law enforcement agencies can be involved.

    Submit an application to the labor inspectorate, describing the situation with non-payment of wages. At the same time, it is necessary to write an application to the prosecutor's office to conduct an inspection at the enterprise.

    Where to go?

    If your salary is delayed, you have the right to go to court by filing a claim for debt, or start with a complaint to the State Labor Inspectorate. Employers can also be held criminally liable for non-payment of wages when the period of non-payment exceeds 2 months (Article 145.1 of the Criminal Code of the Russian Federation). Administrative liability of the employer with the imposition of penalties occurs in accordance with Part 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation. He will have to pay a fine in the amount of 10 to 50 thousand rubles, and it is not paid from the enterprise’s cash desk, but is collected from an official.

    Application to court

    For filing a claim in court for arrears of wages, a shortened period has been established - 3 months from the date of violation of the employee’s rights. The period for the dispute is calculated from the moment when the employee learned about the violation of his rights: received a payslip, received money from a bank account, signed the statement. When accruing and not paying wages, this period is set from the date of dismissal of the employee. Labor disputes are not within the jurisdiction of magistrates, so it is necessary to apply to the district (city) court (Article 24 of the Code of Civil Procedure of the Russian Federation). The state duty is not paid by the employee on the basis of paragraphs. 1 clause 1 art. 333.36 Tax Code of the Russian Federation. Moreover, if an employee is exempt from paying state duty on a claim brought against an organization and the court decision is made in his favor, then it is recovered from the defendant in the amount established for the organization (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation).

    The employee has the right to demand compensation for moral damage from the employer (Article 151 of the Civil Code of the Russian Federation). The claim must indicate moral suffering caused by the employer’s actions. Russian courts seek compensation for moral damage in small amounts.

    To submit an application, you must collect the following package of documents:

  • employment contract;
  • The order of acceptance to work;
  • passport;
  • certificate of arrears of wages;
  • calculation of the amount to be collected.

If you do not have any documents that the employer has, demand them through the court by filing a petition to obtain evidence. The application can be submitted in free written form. It is necessary to indicate the name of the court, your procedural position “plaintiff” and data: full name, address, telephone number, then below “defendant” - information about the employer: details, address. In the text of the claim, state the essence of the violation of labor rights, from what date the salary was not paid, in what amount, partially or in full. Present your arguments consistently, evaluate the employer’s actions with reference to labor legislation. Indicate your requirements, for example, “I ask you to collect arrears of wages.” Attach to the application a calculation of the amount of debt, which will be the cost of the claim. Under the main text, place a list of attached documents, date and sign.

Statute of limitations

Mass layoffs and layoffs are constantly observed in the labor market, so the issue of the statute of limitations for labor disputes related to the collection of wages remains relevant. Upon dismissal, labor legislation obliges the employer to pay the employee all arrears of wages (Article 140 of the Labor Code of the Russian Federation). By showing dishonesty in paying remuneration for work, the employer forces the employee to initiate legal proceedings.

You can file a lawsuit only within a certain period after dismissal, according to Art. 392 Labor Code of the Russian Federation:

  • within 1 month from the date of dismissal - the calculation of the period is determined by documents (date of issue of the work book, date of issuance of the dismissal order);
  • within 3 months after the plaintiff discovers a violation of his labor rights not related to dismissal.

When clarifying the issue of non-payment of wages, the following facts are important:

  • termination of employment relations with the plaintiff;
  • the calculation of the plaintiff's salary;
  • whether the offense is of a continuing nature;
  • date of the first day of delay in payment;
  • the defendant's refusal to pay wages to the plaintiff;
  • the date of full settlement with the employee, including interest for late payments.

If the employee was not fired, and his salary was accrued but not paid, the court will not take into account the defendant’s statement that the statute of limitations has expired. If the violations are ongoing, he must pay the plaintiff the debt during the period of the contract. The employee has the right to compensation due to the delay after the defendant pays off the salary debt.

Debt calculation

When going to court, a citizen has the right to recover:

  • payment for time worked;
  • compensation for unused vacation;
  • interest due to delayed payment of wages;
  • compensation for moral damage.

Interest on wage arrears from the third quarter of 2017 is calculated at 1 to 150 (previously 1 to 300), and the amount of compensation is also affected by the key rate of the Central Bank of Russia. To make a correct calculation of salary arrears and take into account the penalty, contact our specialists via the website or by phone.

If there are inaccuracies in the calculations, the trial will drag on. Not only the judge, but also the interested party checks the calculation. For the successful outcome of a labor dispute, every detail is important: competent drafting of the claim, collection of documents confirming the plaintiff’s position, calculation of the amount of the claim.

Missing the statute of limitations will also require the collection of evidence of its validity in order to file a petition for its restoration. It is equally important to determine the amount of debt.

According to Art. 236 of the Labor Code of the Russian Federation, if the employer violates the deadline for paying wages and other payments due to the employee, he is obliged to reimburse them with interest. The calculation is made according to the current refinancing rate of the Central Bank of the Russian Federation, but not lower than 1/150 of its indicator of the amounts not paid on time for each day of delay. The moment the delay begins is determined from the next day after the due date when payment must be made, up to and including the day of actual settlement. The amount of monetary compensation may be increased by a collective or employment agreement. The obligation to pay regardless of the employer’s fault.

The concept of salary is regulated by the legislator as the remuneration due to the employee for his work and paid by the employer. The basis for carrying out work and receiving material remuneration is an employment contract, but labor relations can take place without it.

Permitted by law 3 days work in a new place and then sign an agreement; in other cases, there is a formal approach to the employment contract or its absence at all. But in any case, if there was an employment relationship, then the material remuneration is recognized by the court as salary.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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The Labor Code states that the salary includes 3 parts of payments:

Salary It is a fixed part and depends on the amount of time worked (days, hours). Although this term is not commonly used in business, salary refers to the part of the salary that the employer and the hired employee agree on when concluding an agreement.
Compensation This includes various additional payments that compensate for working conditions. For example, “for harmfulness”, “long service”, “overtime”, “holiday”, “northern”, etc. What payments a particular employer will make, he is obliged to record in his regulatory documents.
Stimulating to work Bonuses, allowances and all kinds of additional payments to increase labor efficiency. This part of the salary can be paid by the employer at his discretion; the legislator does not say that it is mandatory to encourage the employee to work, but he can do it. The size of these payments is not limited, because the employer, based on its regulations, establishes a bonus system independently. Payments can be made regularly, perhaps monthly, or one-time when bonuses are timed to coincide with certain events.

If an employee has arrears of wages, the court will side with him when his salary, compensation and regular incentive payments are not paid. The employer will be able to prove his innocence by providing legal grounds for deprivation of wages or changing its amount, which must be clearly stated in advance in the regulations at a particular enterprise.

An employer can pay a one-time bonus of his own free will by issuing a special order, so it is impossible to recover it by the court, even if previously these one-time bonuses were paid on the basis of orders on a monthly basis

When a delay may occur

The legislator has established that salaries must be paid in installments at least 2 times a month with approximately equal time intervals. The parts of the salary, including compensation and salary, should also be approximately equal to each other.

Based on the results of work, only bonuses are paid, so they can be accrued for 1 or several months at once, for a year. When receiving wages in cash, employees sign the pay slip; if it is transferred to bank cards, documents are requested from the bank to confirm payment.

The specific numbers when the employer provides for payments, he indicates in the internal Labor Regulations and contracts concluded with employees. Therefore, wages at a particular enterprise must be paid on time, and if these days fall on weekends or holidays, then the day before. There is a deadline for paying vacation pay 3 days before the start of rest, and settlement on the day of dismissal.

Wage arrears can be current, the payment period of which has not yet arrived, but it has already been accrued, and overdue, when the numbers (for example, 1 and 15) provided for by the internal documents of the enterprise are missed. Personal income tax is already included in the salary when it is calculated.

Overdue wages will include the balances of wages that the employer has not paid as of the reporting date, minus those paid (advances). If there is arrears in wages that come from the budget, then all organizations will be in arrears at the same time, regardless of the items for which financing is provided.

Although the employer must pay wages through 14–16 days, i.e. 2 times a month, he can legally do this no later than 7 days after the end of the time interval.

From the moment the reporting date for payment was missed, the debt will be considered overdue, i.e. on the next day. Regardless of whether wages at the enterprise have not been paid in whole or in part, the entire balance of the debt will be attributed to the arrears on the balance sheet.

A delay in payment can occur for various reasons, but the main one is considered to be the company’s lack of funds, when receivables are high and counterparties do not return funds for a long time.

In another case, a large amount of accounts payable has formed and needs to be repaid urgently, as well as other cases. At the same time, according to the balance sheet, salaries are accrued on time, but they do not reach the employees. If the salary is paid later than the terms stipulated by the employment contract and legislative acts, or is not paid at all, this indicates a violation of the Labor Code by the employer.

If we are talking about regular bonuses, then the employer could violate labor laws and not pay them. When he decided not to pay the bonus to the employee and did not properly record the fact of violation of discipline in the documents, this will also be a violation; according to the law, the employee is entitled to payment. In this case, the court recognizes that the employer did not have the right to deprive the employee of a bonus or reduce its size, and therefore is obliged to return the debt for the bonus and material compensation for its delay.

The legislator has established that in any case, if there is a delay in payment of wages, the employer has committed a violation and must bear financial responsibility, because the fact of non-payment of wages to employees cannot depend on:

  • selfish intent or not of the employer;
  • the presence or absence of funds in the company’s account;
  • problems with cash in the bank;
  • illnesses of accounting workers or cashiers;
  • other factors.

Is it possible to collect wage arrears?

Late payment of wages has long become commonplace in many enterprises. Employers abuse their position due to impunity and grossly violate the labor rights of Russian citizens.

Often, wages are underpaid month after month, and each employee has a large debt. The legislator assures that the collection of arrears of wages is possible; citizens are recommended to go to court, which is the most effective method of protecting labor rights.

But first you should try to resolve the issue peacefully:

  • by sending a complaint to the management of the employing company;
  • by contacting the labor inspectorate;
  • by writing a complaint to the prosecutor's office;
  • by preparing a statement of claim in court and notifying the employer that it will be filed.

After contacting the labor inspectorate, it is obliged to respond and send an unscheduled inspection to the enterprise to determine the reason for the debt to the employee. Typically, inspectors take the side of the injured person, and a fine may be imposed on the employer.

In some cases, management is affected by a statement that litigation is pending. If he loses, he will additionally pay legal costs. When the issue is not resolved peacefully, you will have to file an application in court.

Based on the court ruling, the plaintiff will receive:

  • unpaid salary debt;
  • compensation for moral damage;
  • interest for overdue payments will be accrued for each day.

The applicant employee will not have to pay a state fee for filing a claim.

After dismissal

When making payments to an enterprise, the employer is obliged to pay wages on the day of dismissal. If the payment is due immediately after the vacation, then all finances must also be received on the last working day.

If an employee has been denied payment, he needs to remember that the employer violated labor laws and his rights. The fact of illegal dismissal is disputed in court. Cases that make it possible to collect debt payment from an enterprise include overdue debt when there is no threat of dismissal.

In other cases, when:

  • delays in wages and threat of dismissal;
  • dismissal without an order, issuance of labor and payment;
  • illegal actions of the employer.

Upon dismissal, according to the law, the employee receives a salary for the period worked, a debt on it, if any, with interest for late payment, compensation for unspent vacation. If this was not done, the payment was made late or partially, the citizen does not agree with the amount received, he has every right to appeal the employer’s actions in court.

According to the Criminal Code of the Russian Federation, when wages are not partially paid for 3 months. and more, then the head of the enterprise can:

  • face a fine;
  • removal from position for 1 year;
  • imprisonment for up to 1 year;
  • forced labor for up to 2 years.

When an overdue debt is no longer paid 2 months due to selfish goals pursued by the manager, the amount of the fine can be imposed on him within the limits 100–500 thousand rubles., as well as other measures, according to the Criminal Code

Statute of limitations

The three-month period begins from the moment the employee learns that his rights have been violated by the employer, which means that it cannot always be determined precisely. If the applicant misses the deadline that the legislator provides for his defense in court, the debts will not be repaid.

But missing the established period may occur for a good reason, for example, illness, then, according to the Labor Code, the period will be restored in court. To do this, you will have to submit the relevant documents, which the court is very demanding about, and also convince the judges that the applicant can exercise his right to restoration 3 month deadline for filing an application for overdue debt.

At an enterprise, overdue debts to employees for wages are reflected in a special balance sheet account until they are paid or written off at the end of the statute of limitations.

Required documents

To file a statement of claim in the form established by the legislator, the applicant must contact the territorial branch of the court according to registration.

Most modern employees consider salary delays to be commonplace and commonplace, and do not know how to repay the debt. However, in essence this is a serious violation of the labor code. And if you do not appeal to labor laws and get away with delays in salary payments every time, the employer often begins to speculate on this and increase the amount of debt every month.

Management can apply different options to an employee, such as:

  • Withholding wages (by threatening to fire you).
  • Dismissal “under article” without appropriate legal reasons.
  • Dismissal without returning the work book or paying wages.

In order to return wage debts through collection, the employee has every right to go to court with a statement of non-payment of wages, illegal dismissal and a request to compensate for moral damage. In most situations, the victim also receives interest for each day of delay.

What advice can you give to employees who have not received their money for several months? First of all, this is a serious reason for collecting wages and going to court. Today, this mechanism is the most effective and successful means for resolving disputes over arrears of wages. If you are afraid of the prospect of public proceedings, you can try to resolve the debt situation peacefully through negotiations.

To do this, you will need to collect a small package of documentation:

  • application to the labor inspectorate;
  • claim against the debtor;
  • draft statement of claim to the court;
  • complaint to the prosecutor's office.

How it works?

Any complaint to the labor inspectorate must be properly investigated. Thus, the inspectorate responds to such statements with an unscheduled visit to the organization in order to find out the reasons for the debt. As practice shows, the inspector most often takes the side of the employee who is owed wages.

In this case, the employer receives a fine, the amount of which depends on the timing of payment. If the delay occurs over a period of up to two months, the fine will be up to 50,000 rubles. If it is more than two months, then the amount of the penalty payment can reach up to 120,000 rubles.

Based on experience, we can say that in 90% of cases the debtor will try to avoid a lawsuit and agree to resolve the situation peacefully, beneficial to himself and the employee.

Debt recovery with the debt agency "Magister"

Our narrow specialization in resolving debt disputes and recovering debts from commercial and government institutions allows us to help citizens who find themselves in difficult situations. We conduct effective negotiations with large companies and their management, offer defense services in courts and other authorities, and defend the legal rights of citizens to comply with labor laws.