YUST  /  Press-center  /  Analitics

The withholding of wages without the possibility of appeal

Published in the journal "Labour disputes". № 8. 2010.

Kotova-Smolenskaya, Anna, advocate, associated partner of the Law firm «YUST»

Gornostay Nataliya, associate of the Law firm «YUST»

Practice shows that employers are often faced with the need for different reasons to withhold part of the employees ' salaries. Special attention while employers must pay the grounds of such withholding, their sizes and subtleties of completion of these actions.

If to summarize the most common cases you need to make any deductions from wages, they can be divided into three groups: hold on agreement with the employee, the employer's disposal, and at the request of third parties.

When an employee can agree

Today for attracting the most qualified specialists employers widely use such methods of stimulating as the provision of additional (compared with those stipulated by law) types of benefits, guarantees and benefits aimed at improving the social and living conditions of workers and members of their families. For example, this may be the provision of voluntary medical insurance policies, lending in fitness clubs, tourist vouchers, gifts for children for the holiday, etc.

However, not in all cases, the provision of such goods is carried out entirely by employers. As a rule, they partially cover the cost of the relevant services for employees, or arrange wholesale order from the supplier, offering employees the opportunity to purchase it at a lower price. In such cases the employer is a contract for the provision of services from these companies, and later organized the collection of funds with employees (end consumers of services) for payment.

It is obvious that the most effective way of getting the required amount from employees is hold at the payment of the accrued wages. In this regard, the employers precisely the question is how, not violating the labour laws to make it work. The main difficulty lies in the fact that the labour code does not provide for such cases as the grounds for lawful deductions from workers ' wages.

Position soda. OOO PTF «Energetik» has addressed in court with the claim to So-and A. on recovery of unjust enrichment percent for using another's money. In support of the claim States that in the period of the labor contract between OOO PTF «Energetik» and So the Complainant had acquired its employee travel ticket and paid extra cost of a car. Representatives of the defendants stated that funds returned by deductions from wages and the payment in cash of the company. The claim was denied completely. The second instance court further noted: because the worker is weaker side in the dispute, because the previously existing employment relationships, it is the plaintiff (the employer) must provide evidence that, from the salary funds retained. The references of the applicant to the lack of documentation about the salary's not relieve him of the burden of proof, because there is no fault of the employee.

According to senior 137 of the labour code deductions from wages may be made only in cases stipulated by the LC RF and other Federal laws. At the same time we should pay attention to the fact that this restriction is installed in the development of one of the main guarantees of labour payment of workers stipulated by the senior 130 of the LC RF, in virtue of which a limitation of the list of grounds for and size of deductions from wages shall apply if such deductions are made under the order of the employer.

Based on the legal nature of the concerned cases deductions - provision of employee funds to pay benefits based on favorable commercial proposals made by the employer, - it would unjustifiably be attributed to the number of deductions made by the employer's disposal. Because they can be carried out only with the consent of the employee to receive the relevant services of the fixed cost is the retention of the amount can be classified as produced by agreement between the employee and the employer. This type of deduction although not explicit in the RF labor code and other laws, but grounds for declaring them illegal (violation of the rights of workers) also are not seen.

In fact, the withholding of wages in order of payment received by an employee benefits is the disposal of their income. He has the undeniable right, and any restrictions to that effect in the legislation does not contain.

Thus, the lawfulness of the actions of the employer in this case will be based on the submitted an employee Declaration on the deduction from his salary specific dollar amounts agreed periodicity in order to obtain certain benefits provided by the employer (or his mediation), or the agreement between the employee and the employer, containing provisions on the implementation of such withholding. These agreements can be concluded at achievement between the subjects of labor relations agreement concerning voluntary employee compensation caused to the employer damage in accordance with the senior 248 of the labour code of the Russian Federation regulating the procedure of attracting workers to liability.

Position soda. J. addressed the court with a claim against LLC «TUK TUK «utilities», in which he asked to recognize illegal the order of the Respondent on July 30, 2008 withheld from his wages, the basis of which was the limit is exceeded use of the service by the mobile phone. The regional court reversed the decision of the city court, drew the attention of the parties that, in accordance with the senior 232, 233, 238 of the LC RF, a necessary condition for imposing on the employee's obligation to reimburse the employer direct actual damage is the fault of the employee causing of such damage and the causal link between the actions of the employee and the ensuing consequences. If it has not been proven - the right to withhold from wages the employer does not occur.

Other similar cases are:

repayment issued to the employee of the loan;
enumeration at the request of the employee monetary amounts in the address various organizations and other entities (for example, for the payment of membership fees to the trade Union organization, to repay a Bank loan, and so on).

When the employer's initiative

The law establishes an exhaustive list of cases, upon occurrence of which the employer may on its own initiative to make any deductions from wages.

They are manufactured according to his decision, regardless of the will of the worker in order to repay the debt to the employer, namely:

for the reimbursement of unused employee of Deposit issued to him on account of wages;
for repayment of the unused and not promptly returned advance payment received by an employee in connection with a business trip or a transfer to another job in another locality, and also in other cases of receipt by the employee under report the amount of money that they were not consumed and not returned;
for the refund of the amounts unduly paid to the employee due to a mathematical error or in case of recognition by the body considering individual labour disputes fault of the employee in default of norms of work or easy.
Another reason for the deduction is the dismissal of the employee before the end of the working year, on account of which he has already been paid annual leave. In other words, the employer compensates itself payment provided in advance of the leave. The exception to this rule are established by the law cases when such deductions may not be made: if the organization liquidation, reduction of number or staff of workers, the recruitment of an employee on military service or its direction on alternative civil service, etc.

Position soda. MDOU «the kindergarten № 5» has addressed in court with the claim to b about collecting of money resources on the grounds that the Baltic taken on 01.12.2005 and after 6 months, in June 2006, she was granted annual leave in the amount of 58 calendar days from 08.06.2006 on 05.08.2006. B. I received my leave allowance in full. 07.08.2006 she resigned under item 3 tbsp. 77 of the labor code of the Russian Federation (termination of employment contract on the initiative of the employee). The Respondent refused to voluntarily refund money for the unused part of the leave. The Presidium of the Supreme court of the Republic of Karelia has noted, that in virtue of paragraph. 4 h 2 tbsp. 137 of the labour code at dismissal of the worker before the end of the working year in which he had received the annual leave with pay for unused vacation days may be made deductions from wages for repayment of debts to the employer. The exception to this rule is if the employment contract is terminated on the grounds specified in paragraph 1, 2, p. p. «and» p. 3 and p. 4 tbsp. 81 paragraph 1, 2, 5, 6 and 7 tbsp. 83 of the LC RF. Based on the materials of the case, the plaintiff is entitled to make deduction for unused vacation days.

Also at the disposal of the employer can be made against the guilty employee the amount of the caused direct actual damages not to exceed the average monthly earnings. The employer has the right to make this decision not later than one month from the date of expiry of the term set for the return of the prepayment, repayment or incorrectly calculated payment, or from the date of the final establishment of the employer in the amount of incurred by the employee for the damage and if the employee does not contest the grounds for and size of the deduction.

Position soda. The court did not accept the arguments of the plaintiff (the worker) that withholding from his wages illegally, because the Respondent has submitted personal plaintiff's request to retain a certain amount on account of compensation of direct actual damage caused to the employer. Evidence that the Complainant has not given characteristic, «until you write the statement,» no. Moreover, from the explanations of the plaintiff should that he had no characteristics was not given.

However, it should be borne in mind that according including 4 senior 137 of the labour code, wages, excessively paid to the employee (including the improper use by the employer of the labour legislation or other normative legal acts containing norms of labor law)cannot be recovered from it, except for the cases stipulated by law. These include:

counting error;
recognition by the body considering individual labour disputes fault of the employee in default of norms of work, or the simple;
excessive payment of wages to the worker in connection with its illegal actions, if they were established by the court.
Important is the requirement PM 3 tbsp. 137 of the labour code on neopalimaya employee grounds and sizes of deductions. Therefore, before their work, employers are advised to obtain from employers of written confirmation of absence of any vozrazhenij.

The decision to hold formalized by an order of the employer. Special requirements to the document is not provided by law, so it is drawn up in free form.

It should be recognized that in practice quite often have to deal with unlawful deductions. We are talking about the so-called «fines» for violation of labour discipline, such as, for being late, violation of the deadlines for the submission of the report, etc. that is deducted from the salary, if the contravention has occurred. Such actions on the part of employers indicate the assumption by them of violations of provisions of the LC RF, limiting the list of disciplinary sanctions. Responsibilities of the employees in the form of fines in Art. 192 of the labour code is not provided. Also they cannot be attributed to the cases described Art. 137 of the labour code.

When the employee's consent is not required

The law establishes the cases when the employer irrespective of his will or desire of the employee is obliged to make deductions from wages at the request of third parties. such cases include, for example, tax deductions, recovery under Executive documents of the amounts of alimony, compensation of damage caused by an employee to the health of another person, and other cases directly specified in the law.

Position soda. So has addressed in court with the statement about the appeal of actions of the judicial police officer-executor Metallurgical ROSP , Chelyabinsk with demands to recognize its decision unlawful and unjustified, because there was no reason to foreclose on his wages. Refusing in satisfaction of requirements of the applicant, the court applied, including Art. Art. 98, 99 of the Federal law on 02.10.2007 № 229-FZ «On enforcement proceedings», according to which the exaction on wages and other income of the debtor-citizen in the following cases:

execution of Executive documents containing requirements for the recovery of periodic payments;
penalty amount not exceeding 10 000 rubles;
absence or insufficiency of the debtor of monetary funds and other property for the performance in full.
If the Foundation of deductions from wages is the Executive document, the written consent of the employee is not required. But in order to avoid misunderstandings and labour dispute it is recommended to inform the employee against signature with such an enforcement document.

The size of deductions

As a General rule, the amount of all the deductions at each wage payment may not exceed 20% of the employee's earnings.

In cases, stipulated by Federal laws, their size limit can be 50%.

Into force, including 3 tbsp. 138 of the LC RF, the amount of deductions may reach 70% of earnings in the following exceptional cases:

when serving correctional work;
when collecting of the alimony on minor children;
for reimbursement of the damage caused by the employee to the health of another person;
when the compensation for harm to persons who have suffered damage in connection with the death of the breadwinner;
if damage caused by the crime.
Source publication: «Labour disputes»Magazine, № 8 August 2010

Opredelenie Judicial Board on civil cases of the Chelyabinsk regional court from 11.03 on case no 33-2179/2010.
Opredelenie Chelyabinsk regional court from April 20, 2010 in case number 33-3414/2010.
Obzor of the Presidium of the Supreme Court of the Republic of Karelia of judicial practice in civil cases for the first half year 2007
Reshenie Ordzhonikidze district court , Ekaterinburg from 14.11.2008 on case no 2-2837/08.
Cm: the letter Rostrud dated 09.08.2007 # 3044-6-0.
Opredelenie Chelyabinsk regional court on 06.04.2010 on case no 33-3121/2010.
Pismo Rostrud dated 19.12.2007 # 5204-6-0.

Back to list