Administrative;
material;
civil law;
criminal.
The extent of liability is quite different and depends on what violations of labor legislation were identified.
It must be taken into account that paying a fine does not relieve responsibility for eliminating identified violations. Therefore, violations for past periods require the restoration of personnel records.
Administrative responsibility
Bringing to this responsibility is the most common case.
Most often, liability arises under Article 5.27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor legislation and other regulatory legal acts containing labor law norms,” which provides for the imposition of the following fines for relevant offenses:
1. for actually allowing an employee to work without recognizing the relationship with him as an employment relationship, that is, without concluding an employment contract with him, shall entail the imposition of a fine:
For citizens in the amount of 3,000 to 5,000 rubles;
for officials - from 10 thousand to 20 thousand rubles.
2. for evasion of registration or improper execution of an employment contract or the conclusion of a civil contract that actually regulates labor relations between the employee and the employer, entails the imposition of a fine:
For officials in the amount of 10 thousand to 20 thousand rubles;
for persons carrying out entrepreneurial activities without forming a legal entity - from 5 thousand to 10 thousand rubles;
for legal entities - from 50 thousand to 100 thousand rubles.
3. for violation of labor legislation and other regulatory legal acts containing labor law norms not specified in paragraphs 1 and 2 and not provided for in Article 5.21.1 of the Code of Administrative Offenses of the Russian Federation, entails a warning or a fine:
For officials in the amount from 1,000 to 5,000 rubles;
for persons carrying out entrepreneurial activities without forming a legal entity - from 1000 to 5000 rubles;
for legal entities - from 30 thousand to 50 thousand rubles.
In addition, in accordance with the same Article 5.27 of the Code of Administrative Offenses of the Russian Federation, the commission of an administrative offense by a person who has previously been subjected to administrative punishment for a similar administrative offense (that is, a repeated similar violation) entails the following additional administrative liability:
1. if an offense was previously committed in accordance with the above paragraphs 1 and 2, then an administrative fine is imposed:
For citizens in the amount of 5,000 rubles;
for persons carrying out entrepreneurial activities without forming a legal entity - from 30 thousand to 40 thousand rubles;
for legal entities - from 100 thousand to 200 thousand rubles.
In this case, the official responsible for such repeated violations will be disqualified for a period of 1 to 3 years.
2. if an offense was previously committed in accordance with the above paragraph 3, then an administrative fine is imposed:
For officials in the amount of 10 thousand to 20 thousand rubles or disqualification for a period of 1 to 3 years;
for persons carrying out entrepreneurial activities without forming a legal entity - from 10 thousand to 20 thousand rubles;
for legal entities - from 50 thousand to 70 thousand rubles.
In accordance with Article 5.30 of the Code of Administrative Offenses of the Russian Federation “Unreasonable refusal to conclude a collective agreement or agreement,” an unreasonable refusal to conclude such documents with employees entails a warning or the imposition of an administrative fine in the amount of 3,000 to 5,000 rubles.
Article 18.15 of the Code of Administrative Offenses of the Russian Federation “Illegal recruitment of a foreign citizen or stateless person to work in the Russian Federation” provides for:
1. involvement of such persons in labor activities in the Russian Federation in the absence of a work permit or patent, if such documents are required by law, or their involvement in labor activities outside the boundaries of the constituent entity of the Russian Federation in the territory of which a work permit, patent or temporary residence permit was issued entails the imposition of an administrative fine:
For citizens in the amount of 2,000 to 5,000 rubles;
2. engaging in labor activities in the Russian Federation the persons specified in clause 1 of Article 18.15 of the Code of Administrative Offenses, without obtaining, in accordance with the established procedure, permission to attract and use foreign workers, if required by law, entails the imposition of a fine:
For citizens in the amount of 2,000 to 5,000 rubles;
for officials - from 25 thousand to 50 thousand rubles;
for legal entities - from 250 thousand to 800 thousand rubles or administrative suspension of activities for up to 90 days.
3. failure to notify or violation of the established procedure and (or) form of notification to the territorial body of the FMS about the conclusion or termination (termination) of an employment contract or a civil contract for the performance of work (rendering services) with a foreign citizen within a period not exceeding 3 working days from the date conclusion, termination (termination) of a contract, if such notification is required in accordance with the law, entails the imposition of a fine:
For citizens in the amount of 2,000 to 5,000 thousand rubles;
for officials - from 35 thousand to 50 thousand rubles;
for legal entities - from 400 thousand to 800 thousand rubles or administrative suspension of activities for up to 90 days.
4. violations provided for in the above paragraphs 1-3, committed in the federal city of Moscow or St. Petersburg or in the Moscow or Leningrad region, entail the imposition of an administrative fine:
For citizens in the amount of 5,000 to 7,000 rubles;
for officials - from 35 thousand to 70 thousand rubles;
for legal entities - from 400 thousand to 1 million rubles or administrative suspension of activities for a period of 14 to 90 days.
5. failure to notify or violation of the established procedure and (or) form of notification by the employer or customer of work (services) involving highly qualified specialists, the Federal Migration Service or its authorized territorial body about the fulfillment of obligations to pay wages (remuneration) to highly qualified specialists, if such notification or provision of such information is required in accordance with the law, entails the imposition of an administrative fine:
For officials in the amount of 35 thousand to 70 thousand rubles;
for legal entities - from 400 thousand to 1 million rubles.
In accordance with Article 13.11 of the Code of Administrative Offenses of the Russian Federation “Violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data)”, violation of this procedure entails a warning or the imposition of an administrative fine:
For citizens in the amount of 300 to 500 rubles;
for officials - from 500 to 1000 rubles;
for legal entities - from 5,000 thousand to 10,000 rubles.
We have provided articles for which administrative liability most often arises. However, this list is not limited only to these articles. In addition, bills to amend and introduce new types of administrative liability for violation of labor laws are often submitted for consideration.
Material liability
The employer's main financial liability is for late payment or non-payment of wages. Article 236 of the Labor Code of the Russian Federation establishes that in case of violation of the established deadline for the payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay the delayed amounts of payment with interest (monetary compensation) in the amount of not less than 1/300 of the current refinancing rate The Central Bank of the Russian Federation from amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee may be increased by a collective agreement or employment contract.
Article 234 of the Labor Code of the Russian Federation provides for the employer’s obligation to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work.
Such cases include, in particular:
Illegal removal of an employee from work, his dismissal or transfer to another job;
the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
delay by the employer in issuing a work book to an employee, entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal.
Civil liability
In accordance with Article 56 of the Civil Code of the Russian Federation, legal entities are liable for their obligations with all the property belonging to them.
Article 151 of the Civil Code of the Russian Federation provides that if a citizen is caused moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other intangible benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose a monetary obligation on the violator compensation for said damage.
Thus, the employer, when attracting and organizing the work activities of employees, must not violate their rights provided for by the Constitution of the Russian Federation and other regulations.
Criminal liability
Employers may also face such liability.
In accordance with Article 145 of the Criminal Code of the Russian Federation, an unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age may result in a fine of up to 200 thousand rubles or in the amount of wages or other income of the person convicted of a period of up to 18 months or compulsory work for a period of 120 to 180 hours.
Article 145.1 of the Criminal Code of the Russian Federation provides for the following liability for non-payment of wages, pensions, scholarships, benefits and other payments:
1. partial non-payment of the specified payments for more than 3 months, committed out of selfish or other personal interest by the head of the organization, the employer - an individual, the head of a branch, representative office or other separate structural unit of the organization:
Punishable by a fine in the amount of up to 120 thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to 1 year, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to 1 year, or by imprisonment for a term of up to 1 year.
2. complete non-payment of the specified payments for more than 2 months or payment of wages for more than 2 months in an amount below the established minimum wage, committed out of selfish or other personal interest by the head of the organization, the employer - an individual, the head of a branch, representative office or other separate structural unit of the organization :
Punishable by a fine in the amount of 100 thousand to 500 thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to 3 years, or by imprisonment for a term of up to 3 years with or without deprivation of the right to hold certain positions or engage in certain activities for a period of up to 3 years. such.
3. acts provided for in paragraphs 1 and 2 of the article in question, if they entailed grave consequences:
Punishable by a fine in the amount of 200 thousand to 500 thousand rubles or in the amount of the wages or other income of the convicted person for a period of 1 to 3 years, or by imprisonment for a term of 2 to 5 years with deprivation of the right to hold certain positions or engage in certain activities for a term up to 5 years or without it.
Responsibility of the employer to the employee
The employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work.Such an obligation, in particular, arises if earnings are not received as a result of:
Illegal removal of an employee from work, his dismissal or transfer to another job;
the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
delay by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal.
An employer who causes damage to an employee's property shall compensate for this damage in full. The amount of damage is calculated at market prices in force in the given area on the day of compensation for damage.
If the employee agrees, damages may be compensated in kind.
The employee's application for compensation for damage is sent to the employer. The employer is obliged to consider the received application and make an appropriate decision within ten days from the date of its receipt. If the employee disagrees with the employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court.
If the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the Central Bank refinancing rate in force at that time. Bank of the Russian Federation from unpaid amounts on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive. The amount of monetary compensation paid to an employee may be increased by a collective agreement, local regulation or employment contract. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.
Moral damage caused to an employee by unlawful actions or inaction of the employer is compensated to the employee in cash in amounts determined by agreement of the parties to the employment contract.
In the event of a dispute, the fact of causing moral damage to the employee and the amount of compensation for it are determined by the court, regardless of the property damage subject to compensation.
Financial liability to the employer
For damage caused to the employer, the employee bears financial responsibility (Article 238 of the Labor Code of the Russian Federation).The financial responsibility of an employee to the employer is a special type of responsibility, which is characterized by the following factors:
The subject of this type of liability can only be an individual who is in an employment relationship with the employer at the time of direct actual damage;
- the amount of an employee’s financial liability depends on the nature of the offense and the employee’s job function.
An employee may be held financially liable if:
Direct actual damage (Article 238 of the Labor Code of the Russian Federation);
- unlawful behavior of an employee (Part 1 of Article 233 of the Labor Code of the Russian Federation);
- the employee’s guilt (Part 1 of Article 233 of the Labor Code of the Russian Federation).
At the same time, the employee’s financial liability is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer’s failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).
Types of employee financial liability:
1. Partial financial liability, in which the employee bears financial liability for damage caused within the limits of his average monthly earnings, unless otherwise provided by law (Article 241 of the Labor Code of the Russian Federation).
2. Full financial liability, in which the employee compensates for direct actual damage caused to the employer in full (Part 1 of Article 242 of the Labor Code of the Russian Federation).
In this case, full financial liability occurs in the following cases (Part 1 of Article 243 of the Labor Code of the Russian Federation):
Imposing on the employee, in accordance with the law, financial liability in full for damage caused to the employer during the performance of the employee’s job duties. Such an obligation is assigned, for example, to the head of the organization (Part 1 of Article 277 of the Labor Code of the Russian Federation);
- identification of shortages of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
- intentional causing of damage;
- causing damage while under the influence of alcohol, drugs or other toxic substances;
- damage caused as a result of criminal actions of an employee established by a court;
- causing damage as a result of an administrative violation established by the relevant government body;
- disclosure of information constituting a secret protected by law (state, official, commercial or other);
- causing damage while the employee was not performing his job duties.
Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant (Part 2 of Article 243 of the Labor Code of the Russian Federation).
Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative offense (Part 3 of Article 242 Labor Code of the Russian Federation).
An agreement on full financial liability can be concluded with certain categories of employees (for example, cashiers, controllers, managers, managers, etc.). The list of such positions and works is approved by Resolution of the Ministry of Labor of Russia N 85 (Part 2 of Article 244 of the Labor Code of the Russian Federation).
To recover damages from an employee or a group of employees, the employer must:
Conduct an inventory of property in the organization and identify lost or damaged property (clause 27 of the Accounting Regulations, approved by Order of the Ministry of Finance of Russia N 34n);
- order an official investigation, create an official investigation commission, establish the reasons for loss or damage to property (Part 1 of Article 247 of the Labor Code of the Russian Federation);
- request from the employee written explanations of the reasons for the damage. In case of refusal or evasion of the employee from providing the specified explanation, draw up an appropriate act (Part 2 of Article 247 of the Labor Code of the Russian Federation);
- determine the amount of damage based on actual losses at market prices on the day the damage occurred, but not lower than the value of the property according to accounting data (including wear and tear) (Part 1 of Article 246 of the Labor Code of the Russian Federation);
- if the damage was caused by several employees, it is necessary to determine the degree of guilt and the amount of responsibility of each employee.
During the inspection, as well as after its completion, the employee and (or) his representative have the right to get acquainted with all inspection materials and appeal them (Part 3 of Article 247 of the Labor Code of the Russian Federation).
Damage caused to the employer can be recovered both in court and in pre-trial proceedings.
If the damage does not exceed the employee’s average monthly earnings, recovery is made based on the employer’s order without going to court.
The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee (Part 1 of Article 248 of the Labor Code of the Russian Federation).
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court (Part 4 of Article 248 of the Labor Code of the Russian Federation).
If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).
Consequently, to recover damages, the employer can file a claim against the employee in court. In this case, a shortened limitation period is applied - one year (Part 3 of Article 392 of the Labor Code of the Russian Federation).
If an employee quits without paying compensation, the employer can also go to court.
Compensation for damage is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer (Part 6 of Article 248 of the Labor Code of the Russian Federation).
Employer's liability for violation
Article 362 of the Labor Code of the Russian Federation stipulates that managers and other officials of organizations guilty of violating labor legislation and other regulatory legal acts containing labor law norms are liable in cases and in the manner established by federal laws.The Labor Code of the Russian Federation quite clearly and in detail sets out the basic rights and obligations of the parties to labor relations, including the employer.
Thus, among the main responsibilities of the employer provided for in Art. 21 of the Labor Code of the Russian Federation, include:
The obligation to comply with laws and other regulations, local regulations, the terms of the collective agreement, agreements and employment contracts;
- pay wages due to employees in full;
- ensure labor safety and conditions that meet occupational safety and health requirements;
- comply with the instructions of state supervisory and control authorities, pay fines for violations of labor laws and a number of others.
For failure to fulfill or improper fulfillment of duties provided for by the Labor Code of the Russian Federation and other regulatory legal acts, the employer is held accountable in accordance with current legislation.
The application of one or another type of legal liability depends on the nature of the violation of the employee’s labor rights, the severity of the violations and some other circumstances. Therefore, for violation of labor legislation, various types of legal liability are provided: administrative, disciplinary, civil and criminal (Article 419 of the Labor Code of the Russian Federation).
Administrative liability consists of applying administrative penalties to guilty persons as provided for by the legislation of the Russian Federation on administrative offenses.
Currently, this type of legal liability for violation of the labor rights of citizens is the most common. Thus, according to the Federal Labor Inspectorate of the Russian Federation, more than 73 thousand managers and other responsible officials of organizations were brought to administrative responsibility for violations of labor legislation, including legislation on labor protection.
Administrative liability may arise for a variety of violations of labor legislation, including labor safety standards. In the course of supervisory and control activities, the bodies of the Federal Labor Inspectorate of the Russian Federation identify violations of labor legislation in almost all major institutions of labor law. The largest number of violations are revealed, as a rule, in matters of concluding, amending, terminating employment contracts, remuneration, including facts of delayed payment of wages, working time and rest time, as well as violations in matters of labor protection, including in connection with the investigation of accidents cases at work.
Describing measures of administrative liability, it should be noted that the limits of the administrative jurisdiction of the bodies of the Federal Labor Inspectorate of the Russian Federation have expanded significantly compared to the previously existing legislation on administrative offenses. In addition, officials of the Federal Labor Inspectorate of the Russian Federation are given the right not only to directly carry out proceedings in cases of administrative offenses, but also to initiate the application of administrative penalties imposed by other bodies to guilty persons. First of all, we are talking about a form of punishment previously unknown to the legislation on administrative offenses, such as disqualification.
In addition, the Code of the Russian Federation on Administrative Offenses (CAO RF) does not exclude the possibility of bringing a legal entity to administrative liability, including for violations of labor legislation and other regulatory legal acts containing labor law norms. Thus, if the articles of sections I, III, IV, V of the Code of Administrative Offenses of the Russian Federation do not indicate that the norms established by these articles apply only to an individual or only to a legal entity, these norms apply equally to both individuals and legal entities, except for cases where, within the meaning of these rules, they relate and can be applied only to an individual.
In accordance with Art. 23.12 of the Code of Administrative Offenses of the Russian Federation The Federal Labor Inspectorate of the Russian Federation and the state labor inspectorates subordinate to it consider cases of administrative offenses provided for in Part 1 of Art. 5.27, 5.28–5.34, 5.44 Code of Administrative Offenses of the Russian Federation.
Thus, violation by the employer (his authorized representative) of almost any norm of labor and labor protection legislation entails the imposition of an administrative fine on officials in the amount of 5 to 50 times the minimum wage (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
Evasion of an employer or a person representing him from participation in negotiations on the conclusion, amendment or addition of a collective agreement, agreement, or violation of the period established by law for negotiations, as well as failure to ensure the work of the commission for the conclusion of a collective agreement, agreement within the time limits determined by the parties, shall entail the imposition of an administrative penalty. a fine in the amount of 10 to 30 times the minimum wage (Article 5.28 of the Code of Administrative Offenses of the Russian Federation).
Failure by the employer or a person representing him to provide, within the period established by law, the information necessary for conducting collective negotiations and monitoring compliance with the collective agreement, agreement, entails the imposition of an administrative fine in the amount of 10 to 30 times the minimum wage (Article 5.29 of the Code of Administrative Offences). RF).
An unjustified refusal by an employer or a person representing him to conclude a collective agreement or agreement shall entail the imposition of an administrative fine in the amount of 30 to 50 times the minimum wage (Article 5.30 of the Code of Administrative Offenses of the Russian Federation).
Violation or failure by an employer or a person representing him to fulfill obligations under a collective agreement or agreement shall entail the imposition of an administrative fine in the amount of 30 to 50 times the minimum wage (Article 5.31 of the Code of Administrative Offenses of the Russian Federation).
Failure by an employer or his representative to receive the demands of employees and to participate in conciliation procedures, including failure to provide premises for holding a meeting (conference) of employees in order to put forward demands or creating obstacles to holding such a meeting (such a conference), shall entail the imposition of an administrative fine in the amount of 10 to 30 minimum wages (Article 5.32 of the Code of Administrative Offenses of the Russian Federation).
Failure by the employer or his representative to fulfill obligations under an agreement reached as a result of the conciliation procedure entails the imposition of an administrative fine from 20 to 40 times the minimum wage (Article 5.33 of the Code of Administrative Offenses of the Russian Federation).
Dismissal of workers in connection with a collective labor dispute and a strike is subject to an administrative fine in the amount of 40 to 50 times the minimum wage (Article 5.34 of the Code of Administrative Offenses of the Russian Federation).
Concealment by the insured of the occurrence of an insured event under compulsory social insurance against industrial accidents and occupational diseases shall entail the imposition of an administrative fine on citizens in the amount of 3 to 5 times the minimum wage; for officials - from 5 to 10 minimum wages; for legal entities - from 50 to 100 times the minimum wage. The minimum payment amount for calculating fines is 100 rubles.
In addition, officials (state labor inspectors) of the Federal Labor Inspectorate of the Russian Federation are also given the right to initiate proceedings on certain administrative offenses (Article 28.3 of the Code of Administrative Offenses of the Russian Federation), the consideration of which is entrusted to the court of the Russian Federation (Article 23.1 of the Code of Administrative Offenses of the Russian Federation).
Thus, officials of the Federal Labor Inspectorate of the Russian Federation have the right to draw up a protocol on an administrative offense in cases of detection of administrative offenses provided for in Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation “Violation of labor and labor protection legislation”; Art. 5.42 Code of Administrative Offenses of the Russian Federation “Violation of the rights of persons with disabilities in the field of employment and employment”; Part 1 Art. 19.4 of the Code of Administrative Offenses of the Russian Federation “Disobedience to a lawful order or requirement of an official of a body exercising state supervision (control)”; Part 1 Art. 19.5 of the Code of Administrative Offenses of the Russian Federation “Failure to comply within the prescribed period with a legal order (resolution, presentation) of the body (official) exercising state supervision (control)”; Art. 19.6 of the Code of Administrative Offenses of the Russian Federation “Failure to take measures to eliminate the causes and conditions conducive to the commission of an administrative offense”; Art. 19.7 of the Code of Administrative Offenses of the Russian Federation “Failure to provide information (information).”
Moreover, if, based on the results of consideration of cases of administrative offenses provided for in Part 1 of Art. 5.27, Art. 5.28–5.34, 5.44 of the Code of Administrative Offenses of the Russian Federation, an official of the Federal Labor Inspectorate of the Russian Federation makes a decision to impose an administrative penalty (fine) or to terminate the case of an administrative offense, then based on the results of consideration of cases of administrative offenses provided for in Part 2 of Art. 5.27, Art. 5.42, part 1 art. 19.4, part 1 art. 19.5, art. 19.6, 19.7 Code of Administrative Offenses of the Russian Federation, in accordance with Art. 29.9 of the Code of Administrative Offenses of the Russian Federation “Types of resolutions and rulings in a case of an administrative offense”, a determination is made to transfer the case to an official authorized to impose administrative penalties of a different type or size or apply other measures of influence in accordance with the legislation of the Russian Federation.
So, for example, according to Art. 19.4–19.7 of the Code of Administrative Offenses of the Russian Federation, disobedience (unreasonable refusal to provide explanations) to a lawful order or requirement of an official of the body exercising state supervision (control), including the state labor inspector (for legal issues and labor protection), as well as obstruction of the implementation of this by an official of official duties, failure to comply with a legal order (resolution) of the body exercising state supervision (control) within the prescribed period, failure to take measures to eliminate the causes and conditions conducive to the commission of an administrative offense, failure to provide or untimely submission of the necessary information to the relevant body (official) entails application administrative penalties in the form of fines imposed by the court against guilty persons.
Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation provides that violation of labor and labor protection legislation by a person previously subjected to an administrative penalty for a similar administrative offense entails disqualification for a period of one to three years, which is appointed by the court. Disqualification consists of depriving an individual carrying out organizational-managerial or administrative-economic functions in an organization of the right to occupy leadership positions in the executive body of a legal entity, to join the board of directors, to carry out entrepreneurial activities to manage a legal entity, as well as to manage a legal entity in other cases provided for by law (Article 3.11 of the Code of Administrative Offenses of the Russian Federation).
According to Art. 32.11 of the Code of Administrative Offenses of the Russian Federation, the disqualification resolution must be immediately executed by the person brought to administrative responsibility by terminating management of the legal entity. In this case, the agreement (contract) for the implementation of activities to manage a legal entity with a disqualified person must be terminated.
In order to eliminate identified violations of labor legislation and restore the violated labor rights of citizens, in addition to administrative measures, other enforcement measures are used, the main one of which is the issuance of orders to eliminate the identified violations. So, in accordance with Art. 357 of the Labor Code of the Russian Federation, when identifying a violation of labor legislation or another regulatory legal act containing labor law norms, the state labor inspector has the right to issue an order to the employer that is subject to mandatory execution. The specified order may be appealed by the employer in court within 10 days from the date of its receipt by the employer or his representative.
The bodies of the Federal Labor Inspectorate of the Russian Federation carried out more than 264 thousand various inspections, as a result of which more than 239 thousand orders were issued to managers and other responsible officials of organizations to eliminate violations of labor legislation.
The employer's financial liability is expressed in compensation to the employee for material damage caused as a result of the illegal deprivation of his opportunity to work.
Thus, the employer is obliged to compensate the employee for material damage in the event of illegal removal from work, his dismissal or transfer to another job, refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector on reinstatement to his previous job, delay in issuing a work book. , introducing into it an incorrect or non-compliant formulation of the reason for dismissal, as well as in other cases provided for by federal laws and the collective agreement (Article 234 of the Labor Code of the Russian Federation).
In addition, in contrast to the previously effective labor legislation, the employer bears financial responsibility for the delay in payment of wages in the form of payment of interest in the amount of not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time on amounts not paid on time for each day of delay starting from the next day after the established payment deadline until the day of actual settlement inclusive (Article 236 of the Labor Code of the Russian Federation).
Disciplinary liability of officials of organizations for violation of labor legislation and other regulatory legal acts containing labor law norms is expressed in the application of disciplinary measures to them in the form of the imposition of disciplinary sanctions, such as reprimand, reprimand, dismissal on the appropriate grounds provided for in Art. 192 Labor Code of the Russian Federation.
Officials guilty of violating labor legislation may be brought to disciplinary liability by higher-ranking officials, both on their own initiative and on the proposals of the bodies exercising supervision and control over compliance with labor legislation, including the bodies of the Federal Labor Inspectorate of the Russian Federation.
Thus, according to the results of inspections carried out by the Federal Labor Inspectorate of the Russian Federation, almost 25 thousand officials of organizations were brought to disciplinary liability for violations of labor legislation.
The most serious violations of labor legislation, including labor protection legislation, are subject to criminal liability. So, in accordance with Art. 145 of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) for an unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age, a fine is provided in the amount of 200 to 500 times the minimum wage or in the amount of wages or other income of the guilty person for a period of two to five months or compulsory work for a period of 120 to 180 hours.
Article 143 of the Criminal Code of the Russian Federation provides for liability for violation of safety rules or other labor protection rules committed by a person who was responsible for complying with these rules, if this resulted, through negligence, in causing serious or moderate harm to human health. This crime is punishable by a fine in the amount of 200 to 500 times the minimum wage or in the amount of the wages or other income of the guilty person for a period of two to five months, or correctional labor for up to two years, or imprisonment for up to two years. . If these actions negligently resulted in the death of a person, then they are punishable by imprisonment for up to five years with deprivation of the right to hold certain positions or engage in certain activities for up to three years or without this period.
There is also criminal liability for non-payment of wages, pensions, scholarships, allowances and other statutory payments for more than two months, committed by the head of an enterprise, institution or organization, regardless of the form of ownership, out of selfish or other personal interest (Article 145-1 of the Criminal Code of the Russian Federation).
Employer's liability for damage
In accordance with Part 1 of Art. 235 of the Labor Code of the Russian Federation, the employer is obliged to compensate for damage caused to the employee’s property. This damage must be compensated in full, its amount is calculated at market prices in force in the area at the time of compensation. It follows from this provision that the employer is obliged to compensate the employee for damage caused to his property if this property is damaged or destroyed in the course of work or in connection with the performance of a work function. Corresponding to this obligation is the employee’s right to demand from the employer compensation for damage caused to his personal property in connection with the performance of his job duties. The employer's liability for damage or destruction of the employee's property must arise upon proof of general legally significant circumstances established to hold the parties to the employment contract liable. The burden of proof of these circumstances does not always lie with the employee.The employee must prove that he suffered damage in connection with damage or destruction of property belonging to him in the course of his work. The employer's guilt in causing damage to the employee's property is presumed if the property was used in the course of work with the knowledge or consent of the employer's authorized representatives and it is lost or damaged. In this case, the employer is also presumed to have committed unlawful actions, since he failed to fulfill the obligation to ensure the safety of property owned by the employee and used in the course of work. Naturally, in the situation under consideration, there is a causal connection between the employee’s losses and the employer’s guilty and unlawful actions, since the damage to property was caused in connection with the employee’s performance of work duties. Therefore, the employee is guaranteed compensation for damage caused to his property used in the performance of his job duties, unless the employer proves that the damage was not his fault. That is, the obligation to prove the absence of circumstances, the proof of which is presumed when using the employee’s property in the course of work, lies with the employer. Failure of the employer's representatives to fulfill this obligation entails the employee's right to receive compensation for damage caused to property used in the performance of work duties.
The employer is obliged to ensure the safety of the employee’s personal belongings that are in the organization when the employee performs his job duties. In particular, the employer must ensure the safety of outer and other clothing that the employee leaves behind due to the need to perform work duties. Fulfilling this duty involves the allocation of premises in which employees can store things not used in the course of work, which they need after completion of work. The loss of these things in the organization while the employee is performing his job duties can also lead to the employer being held financially liable. For example, the theft of personal belongings from an employee in an organization during the performance of his or her job function and the employer’s failure to ensure the safety of the items should lead to the employer’s obligation to compensate for the damage caused to the employee. Evidence of damage to the employee in the case under consideration may be a decision to initiate a criminal case regarding the theft of things from an employee in the organization. Failure by the employer to ensure the safety of the employee's belongings, in particular the absence of a room in which the employee can leave things until the end of work, entails the employer being found guilty of committing unlawful actions (inaction), as a result of which the theft of the employee's personal belongings became possible. Proof of general legally significant circumstances that entail the financial liability of the employer is also presumed in the situation under consideration. In this connection, in order to be released from financial liability, the employer’s representatives are required to prove that they have taken the necessary measures to ensure the safety of the employees’ property, which the employees leave in the organization while performing their job duties. Failure by the employer to fulfill this obligation entails the employee's right to receive compensation from him for damages arising in connection with the loss of things in the organization during the performance of his job duties. In turn, the employer can file recourse claims against the person who committed the theft of the employee’s belongings in the organization, if, of course, this person is discovered during the investigation. However, in the case under consideration, the employee is guaranteed compensation for damages regardless of the results of the criminal investigation, since the theft of the employee’s belongings became possible due to the employer’s failure to take the necessary measures to ensure the safety of the employee’s belongings left in the organization in connection with the performance of work duties.
The amounts of compensation that the employer pays to the employee in connection with damage to his property are subject to indexation. In this connection, the amount of compensation is determined based on market prices in force in the given area at the time the employee actually receives the amounts paid for his compensation. Therefore, an increase in the value of property, in connection with the damage or loss of which the employee suffered damage, also entails an increase in the amount of damage to be recovered from the employer, if it was not fully repaid by the employer before such an increase.
Thus, proving general legally significant circumstances when holding an employer financially liable for damage caused to an employee’s property has its own characteristics. In particular, if damage occurs, it is the employer who must prove the fulfillment of the obligation to ensure the safety of the employee’s property located in the organization in connection with the employee’s performance of work duties. Failure of the employer's representatives to fulfill this obligation entails the employee's right to receive compensation from the employer for damage caused to his property. The employee also does not have to prove the amount of compensation, since it must be determined by the authorized body or person based on the value of the employee’s property, which is determined at the time he receives the amount of compensation for damage.
In accordance with Part 2 of Art. 235 of the Labor Code of the Russian Federation, damage caused to the employee’s property can be compensated in kind, that is, by transferring to him property of similar value. This form of compensation for damage is possible solely on the basis of the voluntary expression of the will of the employee, confirmed by his written statement. The absence of a written statement in the event of a dispute deprives the employer's representatives of the right to refer to witness testimony to confirm the employee's consent to compensation in kind. The cost of compensation in kind should not be less than the actual damage caused to the employee. If compensation in kind does not fully compensate for the damage incurred by the employee, then he retains the right to demand from the employer the full damage caused to his property, including payment in cash equivalent of the amount outstanding in kind.
In accordance with Part 3 of Art. 235 of the Labor Code of the Russian Federation, the employee’s application for compensation for damage is sent to the employer, who is obliged to consider it within 10 days. If the employee disagrees with the employer’s decision or does not receive a response within the specified period, the employee has the right to go to court. However, Part 3 of Art. 235 of the Labor Code of the Russian Federation cannot serve as an obstacle to appealing to the judicial authorities before the expiration of the ten-day period. This right is guaranteed to the employee under Art. Art. 18, 46 of the Constitution of the Russian Federation. However, from Part 3 of Art. 235 of the Labor Code of the Russian Federation it follows that the employer has an obligation to compensate for damage caused to the employee’s property after 10 days from the date of contacting him with a corresponding application. If the deadline for compensating the employee for damage is violated, the employer may be held financially liable for the delay in payments due to the employee, which is established in Art. 236 Labor Code of the Russian Federation.
An employee has the right to turn to the employer with a claim for compensation for damage caused to his property even after dismissal from work, since financial liability relations are terminated in connection with compensation for damage, and not simultaneously with labor ones. In this case, the general limitation period applies, which in Art. 196 of the Civil Code of the Russian Federation is defined for three years. Missing this deadline cannot be grounds for refusal to accept the application by the court, since the court is obliged to check the validity of the reasons for missing the deadline for applying for judicial protection.
An employee has the right to apply to the state labor inspectorate for the employer’s obligation to compensate for the damage caused to him, including after dismissal from work. In this case, the statute of limitations does not apply. In this connection, the state labor inspectorate has the right to oblige the employer to comply with the legal requirements for compensating the employee for damage even after the specified period. That is, the restoration of the violated rights of an employee through administrative procedure is not limited in time.
Types of employer liability
The head of any organization, regardless of its form of ownership, must ensure the safety of any work. In turn, employees are obliged to comply with labor protection requirements.Responsibility for violation of labor protection requirements is prescribed in Article 419 of the Labor Code of the Russian Federation.
Article 419 of the Labor Code of the Russian Federation states that, depending on the nature and extent of the violations, employees of the organization and other persons guilty of violating labor laws may be held liable for the following types of liability:
1. Disciplinary responsibility.
2. Financial responsibility.
3. Civil liability.
4. Administrative responsibility.
5. Criminal liability for violation of labor protection requirements.
Let us consider in more detail all types of liability for violation of labor protection requirements.
Disciplinary liability for violation of labor protection requirements is a type of liability that occurs for violation of labor discipline in the field of labor protection and industrial safety. Disciplinary liability for violation of labor protection rules is the most common type of violation.
Employees of the organization, as well as persons responsible for compliance with labor protection requirements, may be subject to disciplinary liability.
What is the employee’s responsibility for violating labor protection requirements?
Employees are subject to disciplinary liability for violating labor safety rules in the following cases:
Responsibility of the employee for violation of internal rules and regulations on labor protection;
- violation of labor protection instructions for safe work;
- evasion of medical examination;
- refusal to undergo special training on labor protection during working hours.
Depending on the severity of the fault, the employer has the right:
Make a remark to the employee;
- reprimand the employee;
- severely reprimand the employee;
- dismiss the employee.
An employer may terminate an employment contract with an employee for:
1. Repeated violation of labor protection requirements - for the first violation of labor protection requirements, the employee receives a reprimand, for the second - a reprimand, and for the third - dismissal.
2. A single gross violation of labor protection requirements is a situation that led to an accident or accident. Or a situation that could lead to an accident or mishap.
What is the employer's responsibility for violating labor protection requirements?
Occupational safety specialists and other responsible persons of the organization may be subject to disciplinary action in the following cases:
The employee is allowed to work, but the equipment on which he is supposed to work is faulty;
- the employee is allowed to work on equipment in violation of its technological use;
- the employee is allowed to work on unprotected equipment, if such protection is provided;
- the employee was not provided with personal protective equipment, if such protective equipment is provided;
- the employee has not undergone special training and testing of knowledge on labor protection;
- the employee did not undergo a medical examination;
- the employee was sent to work that is contraindicated for him due to health reasons;
- the employee was involved in overtime work without his consent, as well as in the case when he cannot be involved in overtime work according to the law.
What is the procedure for bringing to disciplinary liability for violation of labor safety rules?
The procedure for applying disciplinary sanctions is specified in Art. 193 Labor Code of the Russian Federation. Having established a disciplinary violation, the manager is obliged to demand a written explanation from the violator. Failure to provide a written explanation does not exempt the perpetrator from disciplinary liability.
Disciplinary liability has a statute of limitations of 1 month. The punishment must be formalized properly, that is, a corresponding order is issued about its imposition, which the guilty person familiarizes himself with under signature within the next 3 days from the date of issue.
Disciplinary punishment is automatically lifted a year from the moment it was imposed, provided that there is no new punishment (Article 194 of the Labor Code of the Russian Federation). Removal of guilt can be made earlier at the request of the employee or his boss and is formalized by order.
An employee may appeal the imposition of a disciplinary sanction to the labor dispute commission within 90 days from the date of being subject to an unreasonably imposed penalty.
Financial liability for violation of labor protection requirements is compensation by the employee for damage caused to the employer as a result of violations of labor protection requirements.
For example, employees may be subject to this type of liability if their violation of labor protection instructions and rules for the safe operation of machinery and equipment resulted in damage to the employer’s property.
An employee can be held financially liable if:
The employee is an adult;
- the employer received obvious actual damage;
- the employee was inactive or exhibited illegal actions;
- the employee’s guilt in causing damage to the employer has been proven.
An employee who caused damage may be required to compensate for material damage in full or in part, when a citizen is required to compensate an amount not exceeding his average monthly salary.
According to Article 247 of the Labor Code of the Russian Federation, the employee is obliged to compensate for material losses if his guilt is proven by the employer and such damage can be calculated. At the same time, according to Article 238 of the Labor Code of the Russian Federation, the employer’s lost profits are not taken into account.
It should be noted that, according to Article 240 of the Labor Code of the Russian Federation, the employer may completely or partially refuse to receive compensation for damage from the guilty party.
Civil liability is the responsibility of a person for violating the Civil Code of the Russian Federation (Civil Code of the Russian Federation) and federal laws adopted in accordance with it.
This measure of responsibility may be imposed on the offender along with disciplinary, administrative and criminal liability. A characteristic feature of this liability is compensation for damage caused to the injured party.
Civil liability for violation of labor protection requirements is established in Chapter 59 of the Civil Code of the Russian Federation.
Civil liability arises for officials in the event of harm or violation of the rights of other entities. In this case, officials are obliged to compensate for property or moral damage to the injured party, depending on the type of offense.
Depending on the basis for applying liability measures, there are:
Contractual liability;
- non-contractual liability.
Depending on the nature, there are:
Shared responsibility;
- joint and several liability;
- subsidiary liability.
Protection of violated rights is carried out by courts of general jurisdiction, arbitration and arbitration courts in a special procedural manner using the norms of the Civil Code of the Russian Federation.
Administrative liability is a type of liability for violation of the Code of Administrative Offenses of the Russian Federation (CAO RF) and regulatory documents adopted in accordance with it.
Managers, officials and other responsible employees are held administratively liable for violation of labor protection legislation.
What should a labor protection specialist do if he is brought to administrative responsibility:
1. Pay a fine if you admit that you committed a violation.
2. Pay the fine, but ask the administration of the enterprise to compensate for the fine you paid if you are sure that you were fined for violations that are not specified in your job descriptions. This practice occurs quite often.
3. Contact the head of the inspector who checked you, or go to court if you completely disagree with the violations that are being charged to you.
The administrative responsibility of the employer for violation of labor protection requirements is specified in Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation “Violation of state regulatory requirements for labor protection contained in federal laws and other regulatory legal acts of the Russian Federation”:
Responsibility for violation of labor protection legislation, including the Labor Code of the Russian Federation (chapters 34-37) provides for a fine for officials, as well as for individual entrepreneurs - from 2 to 5 thousand rubles, for legal entities. persons – from 50 to 80 thousand rubles;
- for failure to conduct or incorrect conduct of a special assessment of working conditions at workplaces, a fine is provided for persons responsible for labor protection, as well as for individual entrepreneurs - from 5 to 10 thousand rubles, for legal entities. persons – from 60 to 80 thousand rubles;
- for employee access without special training and testing of knowledge on labor protection, as well as without undergoing medical examinations, a fine is provided for officials, as well as for individual entrepreneurs - from 15 to 25 thousand rubles, for legal entities. persons – from 110 to 130 thousand rubles;
- for employee access without personal protective equipment (PPE), a fine for officials, as well as for individual entrepreneurs - from 20 to 30 thousand rubles, for legal entities. persons – from 130 to 150 thousand rubles;
- for repeated violation of the above points, a fine is provided for officials - from 30 to 40 thousand rubles, or suspension from work for a period of 1 to 3 years. For individual entrepreneurs – a fine of 30 to 40 thousand rubles, or suspension of activities for up to 3 months. For legal entities persons – a fine of 100 to 200 thousand rubles, or suspension of activities for up to 3 months.
The decision to impose penalties in the form of fines is made by inspectors or heads of State supervision bodies. Cases of administrative violations are considered by courts and authorized government bodies. The imposition of an administrative penalty does not relieve a person from performing his duties in the activity in which the violation was committed.
Criminal liability for violation of labor protection requirements is a type of liability of officials for violation of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) in terms of labor protection and industrial safety. The most severe punishment is provided for this responsibility.
Criminal liability may arise in the event of unintentional harm to a person’s health, or his death during an emergency at a specific facility (collision, accident, fire, disaster).
Criminal liability may arise if two grounds coincide at once:
1. If the injury is fatal or the injury is classified as severe. If the injury is minor, then there will be no criminal liability for violation of labor protection requirements. The Investigative Committee will, of course, come to your company and request the relevant documents, but will not open a criminal case.
2. If you see your name and position in the investigation report in the section “Persons who violated state labor protection requirements. Watch the video with the answer to this question (from the 1st minute of the video):
Criminal liability for violation of labor protection requirements is prescribed in Art. 143 of the Criminal Code of the Russian Federation “Violation of labor protection rules” and Art. 219 of the Criminal Code of the Russian Federation “Violation of fire safety requirements.”
Article 143 “Violation of labor protection rules” provides for liability depending on the severity of the incident:
Causing by negligence;
- death of 1 person due to negligence;
- death of 2 or more people due to negligence.
Thus, criminal liability arises for failure to comply with labor protection requirements by a person who is entrusted with the responsibility for their implementation, resulting in the infliction of serious harm to health.
In this case, the person may suffer one of the following types of punishment:
A fine of up to 400 thousand rubles or in the amount of wages or other income convicted for a period of up to 18 months, or
- corrective labor for up to 2 years, or
- forced labor for up to 1 year, or
- imprisonment for up to 1 year, with the possibility (not necessarily) of deprivation of the right to engage in activities for up to 1 year.
If the death of 1 person occurs due to negligence, then one of the following types of punishment is provided:
Forced labor for up to 4 years, or
- imprisonment for up to 4 years, with the possibility of deprivation of the right to engage in activities for up to 3 years.
If 2 or more people die due to negligence:
Forced labor for up to 5 years, or
- imprisonment for up to 5 years, with the possibility of deprivation of the right to engage in activities for up to 3 years.
We also advise you to read Art. 219 of the Criminal Code of the Russian Federation “Violation of fire safety requirements.” This article also provides for fairly serious liability for violation of labor protection legislation.
According to the Criminal Code of the Russian Federation, an employee must know for what and on what basis he is punished. Punishment must be: objective, adequate to the offense; if possible, promptly (after 45 days after the offense, the effectiveness of the punishment becomes practically zero).
Full financial responsibility of the employer
The employer's financial liability to the employee occurs in the following cases:Causing damage by illegally depriving him of the opportunity to work;
causing damage to employee property;
delays in payment of wages and other payments due to the employee;
causing moral harm to an employee.
The employer is obliged to compensate the employee for material damage caused to him by unlawful deprivation of his opportunity to work (Article 234 of the Labor Code of the Russian Federation).
Such liability of the employer arises if the employee does not receive earnings as a result of:
Illegal removal of an employee from work, dismissal or transfer to another job;
the employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
delay by the employer in issuing a work book to the employee, or entering into the document an incorrect or non-compliant formulation of the reason for dismissal.
According to the legislator, this is an exhaustive list. Previously. Art. 234 of the Labor Code of the Russian Federation contained indications of other cases provided for by federal laws and the collective agreement. Currently, the most common basis for holding an employer liable is illegal removal from work, dismissal or transfer to another job. Suspension from work, dismissal and transfer to another job are regulated by current labor legislation. In the cases provided for in Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend or not allow the employee to work. Therefore, most often, it is not the very fact of suspending an employee from work that is illegal, but the procedure for applying such suspension is violated, which makes the corresponding order (instruction) of the employer illegal. Thus, when an employee who appears at work in a state of alcohol, drug or other toxic intoxication is suspended, his medical examination is not carried out or a report on his appearance in such a state at the workplace is not drawn up.
There are frequent cases of transferring an employee at the initiative of the employer to another job without his consent, encouraging the employee to agree to a fixed-term contract instead of an employment contract concluded for an indefinite period, or, under the threat of dismissal, to switch to a part-time working week.
In small businesses, employers often do not issue a work book when hiring, despite the employee’s requirements.
The employer is financially liable for damage caused to the employee's property. Such liability occurs in the event of damage, deterioration, or loss of outer clothing, headwear, or other things belonging to the employee, even if he did not transfer them for safekeeping to the wardrobe. They can be stored at the workplace, on the territory of the organization in specially designated places.
An employee's property also includes monetary assets. Local regulatory legal acts may provide for the employer’s obligation, in the event of a vacation postponement, to compensate the employee for non-refundable expenses incurred by him for purchasing tickets, booking hotel rooms, etc.
In market economic conditions, the legislator attaches particular importance to the timely payment of wages and other payments due to the employee.
Ensuring the right of every employee to timely and full payment of fair wages that ensure a decent human existence for himself and his family is enshrined in the Labor Code of the Russian Federation as a basic principle of labor law (Article 2). A similar obligation of the employer is contained in Art. 22 of the Labor Code of the Russian Federation: “Pay in full the wages due to employees within the time limits established in accordance with this Code, the collective agreement, internal labor regulations, and employment contracts.”
In market economic conditions, employer delays in wages are widespread. This has become commonplace. The employer's liability in such cases occurs regardless of his guilt.
The legislator has provided a number of guarantees for the employee, encouraging the employer to pay him in a timely manner. Thus, if the payment of wages is delayed for more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until the delayed amount is paid (Part 2 of Article 142 of the Labor Code of the Russian Federation). In case of untimely payment of annual paid leave to an employee, the employer, at the written request of the employee, is obliged to postpone such leave to another period agreed with him (Part 2 of Article 124 of the Labor Code of the Russian Federation).
If the employer violates the established deadline for payment of wages, vacation pay and other payments due to the employee, the employer is obliged to additionally pay him monetary compensation in the amount of not less than 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at that time from the delayed amounts for each day starting from the next day after the due date until the day of actual settlement inclusive. The amount of monetary compensation to an employee may be established by a collective or labor agreement. However, it cannot be lower than provided for by law (Article 236 of the Labor Code of the Russian Federation). In cases where the financial situation of the organization does not allow the employer to pay the employees on time, a debt repayment schedule is drawn up, and, in extreme cases, the organization or employer - individual is declared bankrupt.
The employer is also responsible in case of harm to the life and health of the employee. Such liability is regulated mainly by civil law. Violation of current labor laws by an employer usually causes moral or physical suffering to the employee. The definition of the concept of moral harm in case of violation of the labor rights of workers was given in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 “Some issues of application of legislation on compensation for moral harm.” According to the Supreme Court of the Russian Federation, moral or physical suffering can be caused by the action or inaction of an employer encroaching on material benefits belonging to a citizen from birth or by force of law (life, health, personal dignity, business reputation, privacy, personal and family secrets, etc.) . p.) or violating his personal non-property rights (the right to use his name, the right of authorship and other non-property rights in accordance with the law on the protection of rights to the results of intellectual activity) or violating the property rights of citizens.
From the above definition it follows that compensation for moral damage is possible in the event of a guilty violation by the employer, firstly, of the natural rights of the employee, belonging to him from birth or by force of law, both property and non-property; secondly, his personal non-property rights; thirdly, the employee’s property rights.
An employer’s offense can be expressed in certain of his actions: this can be discrimination in the sphere of labor, dismissal without legal grounds or in violation of the established procedure, illegal transfer to another job, unjustified disciplinary action, etc.
Guilty inaction of the employer, violating the rights of the employee, is manifested, for example, in violation of the rules for conducting a technical process (failure to eliminate a malfunction in equipment, failure to take the necessary measures to provide the employee with raw materials, materials, semi-finished products of proper quality, failure to familiarize him with new or updated technological instructions, labor protection rules, which led to the release of defective products, and, accordingly, a decrease in the employee’s earnings).
Guilty inaction of the employer may occur in the event of failure to comply with decisions of the judicial authorities on the restoration of an illegally dismissed employee to his previous job, etc.
Moral damage caused to an employee in the process of work is compensated in cash. Its size is determined by agreement of the parties. If the employee, in negotiations with the employer, was unable to agree on the need for compensation for moral damage, or the parties did not reach an agreement on its amount, then the employee can go to court. The court has the right to satisfy the employee’s demands if it is proven that the employer has caused him moral harm. In this case, the amount of compensation to the employee is determined by the court, regardless of the property damage subject to compensation (Part 2 of Article 237 of the Labor Code of the Russian Federation).
According to the Supreme Court of the Russian Federation, the amount of compensation for moral damage is determined by the court based on the specific circumstances of each case, taking into account the volume and nature of the moral or physical suffering caused to the employee, the degree of guilt of the employer, other noteworthy circumstances, as well as the requirements of reasonableness and fairness.
Administrative responsibility of the employer
Bringing a manager to this type of responsibility is the most common case. Most often, it occurs under Article 5.27 of the Code of Administrative Offenses of the Russian Federation “Violation of labor legislation and other regulatory legal acts containing labor law norms,” which imposes the following amounts of penalties on the employer for the following deviations:1. for allowing an employee to carry out work activities without drawing up an employment contract with him:
for an individual – from 300 rubles to five thousand,
for an official – from 10 to 20 thousand rubles;
2. for unwillingness to draw up or for improper execution of an employment or civil law contract that regulates the labor relationship between the employee and the employer:
for an official – from 10 to 20 thousand rubles,
for a person engaged in entrepreneurial activity - from five to ten thousand rubles,
for a legal entity – from 50 to 100 thousand rubles;
3. for non-compliance with the Labor Code and other acts that are related to labor law standards that are not prescribed in paragraphs 1 and 2 and are not recorded in Article 5.21.1 of the Code of Administrative Offenses of the Russian Federation:
for an official - from one to five thousand rubles,
for a person engaged in entrepreneurial activity - from 1000 to 5000 rubles,
for a legal entity – from 30 to 50 thousand rubles.
In addition, the same article 5.27 of the Code of Administrative Offenses of the Russian Federation states that the commission of an administrative violation by a person who has already been prosecuted for a similar act before, i.e., for repeated similar offenses, leads to additional penalties.
1. If up to this point there has been a failure to comply with the standards in accordance with paragraphs 1 and 2 above, then the director bears additional obligations in the form of fines as:
Individual – five thousand rubles,
a person carrying out entrepreneurial activities - from 30 to 40 thousand rubles,
legal entity – from 100 to 200 thousand rubles.
In addition, for repeated such deviations from the rules, the official is suspended from work for a period of one to three years.
2. If before this moment a violation was committed in accordance with paragraph 3, then the employer will be punished in the form of administrative penalties:
Official - from 10 to 20 thousand rubles or suspension from work for a period of one to three years,
a person engaged in entrepreneurial activity – from 10 to 20 thousand rubles,
legal entity – from 50 to 70 thousand rubles.
In accordance with Article 5.30 of the Code of Administrative Offenses of the Russian Federation “Unreasonable refusal to conclude a collective agreement or agreement,” an unreasonable refusal to sign such a package of documents leads to the employer’s liability in the form of a warning or to administrative penalties in the amount of three to five thousand rubles.
Article 18.15 of the Code of Administrative Offenses of the Russian Federation “Illegal recruitment of a foreign citizen or stateless person to work in the Russian Federation” states:
1. Involvement in the process of work activities on the territory of Russia of persons who do not have an official work permit or patent, if the availability of such documents is established by labor law, or their involvement in the work process outside the territory of the Russian Federation in which the permit to carry out activities was issued, a patent or a temporary residence permit entails the employer’s liability in the form of administrative fines:
citizens - from two to five thousand rubles;
officials - from 25 to 50 thousand rubles;
legal entity – from 250 to 800 thousand rubles or a ban on working for up to three months;
2. When involving in the work process in the Russian Federation persons who are specified in paragraph 1 of Article 18.15 of the Code of Administrative Offenses of the Russian Federation, without permission to attract and employ employees who do not have Russian citizenship, if such a point is fixed in legislative documents, the employer pays a fine:
citizens - from two to five thousand rubles,
officials - from 25 to 50 thousand rubles,
legal entity – from 250 to 800 thousand rubles or a ban on working for up to 90 days;
3. Failure to notify or neglect the accepted procedure or method of notifying the Federal Migration Service of the conclusion or cancellation of a work contract or civil agreement with a foreign employee who does not have Russian citizenship for work within a period that does not exceed three working days from the date of signing, if Such notification is specified in legislative documents and entails penalties for:
citizens - from two to five thousand rubles,
officials - from 35 to 50 thousand rubles,
legal entities – from 400 to 800 thousand rubles or a ban on working for up to three months;
4. The offenses described in the previous three paragraphs, committed on the territory of cities of federal significance, such as Moscow or St. Petersburg, entail the imposition of penalties on the employer:
citizens pay from five to seven thousand rubles,
officials - from 35 to 70 thousand rubles,
legal entities make a payment in the amount of 400 thousand to 1 million rubles or receive a ban on carrying out labor activities from two weeks to three months;
5. Failure to notify or ignore the accepted procedure or method of notification by an employer hiring highly qualified specialists, the Federal Migration Service or its authorized state body about the fulfillment of obligations to pay salaries to highly professional employees, if such notification or provision of this information is required by labor legislation, will hold the manager accountable in the form of penalties:
for an official - from 35 to 70 thousand rubles,
for a legal entity – from 400 thousand to 1 million rubles.
According to Article 13.11 of the Code of Administrative Offenses of the Russian Federation “Violation of the procedure established by law for the collection, storage, use or dissemination of information about citizens (personal data)”, violation of such a procedure will lead the employer to pay penalties:
Citizen – from 300 to 500 rubles,
official - from 500 to 1000 rubles,
legal entity – from 5,000 to 10,000 rubles.
We have examined the points for which the employer is most often brought to administrative liability. In fact, there are many more reasons to punish him with a ruble. What further complicates the situation is that the State Duma is systematically considering various bills to improve such measures for violation of labor laws.
Agreement on employer liability
The legislation contains a list of categories of employees with whom the employer can enter into an agreement on full individual responsibility, as well as the work they perform (see Resolution No. 85), and also defines the standard form of the agreement.Any employer also has the right to enter into an employment contract providing for full responsibility with his deputy (for example, financial director) or chief accountant. However, in order to oblige the chief accountant or financial director to fully compensate for the damage caused, the company in practice has to go to court.
In some cases (this, as a rule, does not apply to the financial director or chief accountant), the company may enter into written agreements on full collective responsibility. This usually happens when employees perform certain work together, when it is extremely difficult (almost impossible) to differentiate the responsibility of each of them for possible damage. Such an agreement is concluded between the company and all team members.
When hiring workers and fulfilling the duties of an employer, the business owner has the right to count not only on the integrity of his staff, but also on compensation for damage if it was caused by them. The financial responsibility of the employee to the employer is established by Article 238 of the Labor Code of the Russian Federation. According to it, the employee is obliged to compensate the employer for direct actual damage.
Such damage means:
Reduction or deterioration of the property of the employer or third parties, if the employer is responsible for its safety;
costs incurred by the employer for the acquisition or restoration of property;
compensation by the employer for damage caused by the employee to third parties.
Lost profits (lost income), even if its connection with the actions of the employee is proven, cannot be recovered from him.
Recovery of damages from the guilty employee is the right of the employer, which he can partially or completely waive (Article 240 of the Labor Code of the Russian Federation).
As a general rule, the employee bears limited financial liability to the employer, in an amount not exceeding his average monthly earnings (Article 241 of the Labor Code of the Russian Federation). However, some categories of employees have access to such employer resources (cash, property, material assets) that can cause very serious damage to him. Such employees are subject to the rules of full financial responsibility, which is not limited to their monthly salary.
The Labor Code stipulates that it is possible to conclude a liability agreement with employees over 18 years of age who directly service or use monetary, commodity valuables or other property of the employer.
To ensure that there are no disputes between the parties to the labor relationship over whether a particular employee belongs to the category of financially responsible workers, Resolution No. 85 of the Ministry of Labor of Russia approved the List of positions and work performed by employees with whom it is possible to conclude an agreement on financial liability.
This list is closed, i.e. if the employee’s position or type of work is not named in it, then it is impossible to conclude an agreement on financial liability with him.
At the same time, the list is quite extensive; such positions and works include:
Cashiers and controllers;
managers and specialists involved in transactions for the purchase, sale and other types of circulation of banknotes, securities, and precious metals; other transactions with cash and payment cards;
directors and other heads of trade, catering, hotels, consumer service enterprises; their deputies and assistants; sellers and merchandisers;
managers of construction and installation shops, foremen and producers of construction and installation works;
warehouse managers, supply managers, suppliers and other workers who keep records and store material assets;
work on keeping and breeding farm and other animals;
reception and processing for further delivery of cargo, luggage, postal items, and other material assets.
Please note that the mere performance by an employee of the work or job duties mentioned in the List does not automatically entail his full financial liability. If the employer wants to be able to compensate for the damage caused by the employee, then in addition to the employment contract, it is necessary to conclude an agreement on financial liability.
The List does not mention the head of the organization (except for some types of organizations), but he also bears full financial responsibility for damage caused to the organization, in accordance with the provisions of Article 277 of the Labor Code of the Russian Federation. The employer has the right to demand full compensation for damages from the manager, regardless of whether the employment contract contains a condition on full financial liability.
As for the chief accountant, who is also not mentioned in the List, but at the same time can cause serious damage to the employer through his actions, a separate agreement on financial liability cannot be concluded with him. However, the condition of his full financial responsibility can be provided for in the employment contract, on the basis of Articles 233 and 243 of the Labor Code of the Russian Federation. If there is no such clause, then the chief accountant is liable according to the general rule, i.e. within the limits of average monthly earnings.
An agreement on liability is concluded in writing, and it must be an agreement, and not some internal document such as an order. One copy of the contract is given to the employee, the second is kept by the employer. It is advisable to obtain the employee’s signature on the employer’s copy confirming receipt of his copy (similar to the procedure when concluding an employment contract).
You can conclude an agreement on financial responsibility immediately upon signing the employment contract, or later, when the employer’s property is transferred to the employee under the acceptance certificate. Can an employee refuse to sign such an agreement? The Plenum of the Supreme Court believes that the employee does not have the right to this (resolution of the Plenum of the Supreme Court of the Russian Federation No. 2).
If the main labor function is related to the safety of material assets, and the employee knew this when concluding the employment contract, then refusal to sign an agreement on financial responsibility means failure to fulfill his labor duties. This situation will entail the transfer of the employee to another job or his dismissal.
An agreement on liability can be not only individual, i.e. concluded with an individual employee, but also collectively, when it is impossible to differentiate the responsibility of each employee for causing damage (Article 245 of the Labor Code of the Russian Federation). For example, such an agreement can be concluded with the store team.
Resolution of the Ministry of Labor of Russia No. 85, in addition to the List of works and positions, includes samples of standard contracts on material liability (individual and collective). Standard samples can be supplemented or changed, but should not worsen the employee’s position, i.e. impose on him responsibility that is not provided for by labor legislation.
When dismissing or transferring a financially responsible employee to another job, it is necessary to draw up a document in the personnel order stating that there are no material claims against him.
The employee’s financial liability arises only if the damage is caused by his fault - intentionally or through negligence. Intentional harm refers to the conscious actions of an employee aimed at causing damage to the employer, and negligence refers to the actions of an employee, the consequences of which he was not aware of, although he should have been.
The employee's financial liability is excluded in cases of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation).
What can be understood as normal economic risk? Its interpretation is given in Resolution of the Plenum of the Armed Forces of the Russian Federation No. 52. These are the actions of the employee, consistent with modern knowledge and experience, when the goal could not be achieved otherwise, and the employee properly fulfilled his job duties, showed care and prudence, and took measures to prevent damage , and the object of risk was material assets, and not the life and health of people.
The employer can learn that the actions of an employee with whom a liability agreement was concluded led to damage from internal or external sources. This could be an audit or tax audit report, customer complaints, audit results, cases of bringing an employee to administrative responsibility (for example, from the traffic police).
Before making a decision on compensation for damage by a specific employee, the employer is obliged to conduct an inspection to establish the amount of damage and the reasons for its occurrence. An inventory is carried out to identify missing or damaged property. A written explanation must be received from the financially responsible employee. If the employee refuses to give it, a corresponding act is drawn up about this (Article 247 of the Labor Code of the Russian Federation).
You can recover damages from an employee voluntarily or in court. If the amount of damage does not exceed one average monthly salary of the employee, then within a month the employer can recover it by order. If this amount is greater, and the employee confirms the fact of his guilt and does not dispute the amount of damage, then he must write a receipt with an obligation to repay the damage within a certain time frame. The parties to the conflict may agree that the employee returns property of equal value to the employer in replacement of the lost property or repairs damaged property at his own expense.
The employer will have to go to court if:
A month has expired since the amount of damage was determined, not exceeding the average monthly salary, and the employer has not ordered its recovery;
the employee does not want to compensate for the damage caused to him voluntarily;
the employee gave a receipt for voluntary compensation for damage from his salary, and then quit.
An employer can go to court with a claim for compensation for material damage by an employee only within one year from the date of discovery of the damage (Article 392 of the Labor Code of the Russian Federation). Such disputes are not subject to the usual three-year statute of limitations.
After the court has issued a writ of execution, the employer has the right to withhold the amount of damage from the employee’s salary. In this case, the following restriction applies - the total amount of deductions from the employee’s salary (for example, the employee pays alimony) cannot be more than 50% of his income.
Employer's liability for violation of the law
In particular, now Art. 5.27 of the Code of Administrative Offenses of the Russian Federation establishes liability for violation of labor legislation and other acts containing labor law norms, and the new art. 5.27.1 – for violation of state regulatory requirements for labor protection contained in federal laws and other regulatory legal acts of the Russian Federation.There are also now several types of offences. Let's consider what these violations are and what liability is provided for them.
New edition of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation establishes several offenses:
1. Actual admission to work by a person not authorized to do so by the employer, if the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer as labor (does not enter into a contract with the person actually admitted to work , employment contract) (part 2).
Let us immediately note that this offense corresponds to the employer’s obligation to recognize the employment relationship if the employee was allowed to work without concluding an employment contract, as well as with the consequences of actually allowing an unauthorized person to work. Such consequences were established by the new Art. 67.1 of the Labor Code of the Russian Federation, which was introduced into the Labor Code by the same Law No. 421 Federal Law.
So, according to Art. 16 of the Labor Code of the Russian Federation, labor relations arise between an employee and an employer on the basis of an employment contract concluded by them in accordance with the Labor Code.
If the employer has not drawn up a written employment contract with the employee, it is considered concluded if the employee began work with the knowledge or on behalf of the employer or his authorized representative. Upon actual admission to work, the employer is obliged to draw up an employment contract with the newcomer in writing no later than three working days from the date of admission to work.
So, according to Art. 67.1 of the Labor Code of the Russian Federation, if an individual was actually allowed to work by an employee not authorized to do so by the employer, and the employer or his authorized representative refuses to recognize the relationship that arose between the person actually allowed to work and this employer as labor (that is, to conclude an employment contract with this person), the employer in whose interests the work was performed is obliged to pay such an individual for the time actually worked (work performed).
And if an employee is actually allowed to work without being authorized by the employer, he may be brought to financial liability, as well as administrative liability, established by Part 2 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, according to which the fine imposed on officials of an organization for such a violation ranges from 10,000 to 20,000 rubles.
2. Evasion or improper execution of an employment contract or the conclusion of a civil contract that actually regulates the labor relationship between the employee and the employer (Part 3).
Let us remind you: Part 2 of Art. 15 of the Labor Code of the Russian Federation establishes that the conclusion of civil contracts that actually regulate labor relations between an employee and an employer is not allowed.
For such violations, an administrative fine of 10,000 to 20,000 rubles may be imposed on an official, and from 50,000 to 100,000 rubles on a legal entity.
For committing repeated offenses under Part 2 or 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, officials are subject to disqualification for a period of one to three years, and a fine of 100,000 to 200,000 rubles is imposed on legal entities.
3. Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided for in Parts 2 and 3 of Art. 5.27 and Art. 5.27.1 Code of Administrative Offenses of the Russian Federation (Part 1, Article 5.27). That is, for other violations, in addition to those listed above, as well as those established by Art. 5.27.1, an official may be given a warning or a fine from 1,000 to 5,000 rubles, and a legal entity may be fined from 30,000 to 50,000 rubles.
Earlier in Art. 5.27 of the Code of Administrative Offenses of the Russian Federation did not provide for such a type of punishment as a warning. A warning is a measure of administrative punishment, expressed in official censure of an individual or legal entity, which is issued in writing. A warning is established for administrative offenses committed for the first time in the absence of causing harm or a threat of harm to the life and health of people, objects of flora and fauna, the environment, objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation, state security, threats of emergency situations of natural and of a man-made nature, as well as in the absence of property damage (Article 3.4 of the Code of Administrative Offenses of the Russian Federation).
For repeated violations provided for in Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, officials are subject to a fine in the amount of 10,000 to 20,000 rubles, and legal entities - in the amount of 50,000 to 70,000 rubles.
Article 5.27.1 of the Code of Administrative Offenses of the Russian Federation establishes the following offenses in the field of labor protection:
1. Violation by the employer of the established procedure for conducting a special assessment of working conditions at workplaces or failure to conduct it (Part 2).
In accordance with Art. 212 of the Labor Code of the Russian Federation and Art. 8 of Federal Law No. 426 FZ “On Special Assessment of Working Conditions”, the responsibility for organizing and financing a special assessment of working conditions rests with the employer. The procedure for conducting the assessment is established in Chap. 8 of the said law.
A special assessment of working conditions in the workplace is carried out at least once every five years. The methodology for conducting a special assessment of working conditions, the classifier of harmful and (or) hazardous production factors, the form of the report on the special assessment and instructions for filling it out are approved by Order of the Ministry of Labor of the Russian Federation No. 33n. The methodology establishes mandatory requirements for procedures consistently implemented within the framework of a special assessment of working conditions.
So, these violations entail for an official a warning or a fine in the amount of 5,000 to 10,000 rubles, and for legal entities a fine in the amount of 60,000 to 80,000 rubles.
2. Admission of an employee to perform job duties without undergoing training in the established order and testing knowledge of labor protection requirements, as well as mandatory preliminary (upon entry to work) and periodic (during employment) medical examinations, mandatory medical examinations at the beginning of the working day (shifts), mandatory psychiatric examinations or in the presence of medical contraindications (part 3).
By virtue of Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow) an employee who has not undergone training and testing of knowledge and skills in the field of labor protection, as well as a mandatory medical examination and a mandatory psychiatric examination in accordance with the established procedure. If such employees were allowed to work, the officials who allowed this to happen may be fined in the amount of 15,000 to 25,000 rubles, and the organization - in the amount of 110,000 to 130,000 rubles.
3. Failure to provide workers with personal protective equipment (Part 4).
According to Art. 212, 221 of the Labor Code of the Russian Federation, the employer must purchase at his own expense (and in accordance with established standards provide persons engaged in work with harmful and (or) dangerous working conditions, in work performed in special temperature conditions or associated with pollution) passed mandatory certification or declaration of personal protective equipment: special clothing, special shoes, etc., as well as flushing and (or) neutralizing agents.
Under the personal protective equipment mentioned in Art. 5.27.1 of the Code of Administrative Offenses of the Russian Federation, one should understand the means of protection classified by the Technical Regulations of the Customs Union “On the Safety of Personal Protective Equipment” (adopted by the Decision of the Commission of the Customs Union No. 878) to class 2, depending on the degree of risk of harm to the employee. This includes personal protective equipment of complex design that is subject to mandatory certification and protects against death or dangers that can cause irreversible harm to the health of the user.
Returning to the violation of the established procedure for conducting a special assessment of working conditions in the workplace, we note that it is not carried out by the employer (he only organizes and pays for its implementation), but by a specialized organization attracted by the employer on the basis of a civil law contract.
In this regard, the legislator, when establishing liability for the employer, did not forget about the organizations conducting the assessment. Law No. 421 Federal Law of the Code of Administrative Offenses of the Russian Federation supplemented Art. 14.54, which provides for liability for violation by the organization carrying out a special assessment of working conditions of the established procedure for conducting such an assessment. This violation committed by an official of the organization (including the expert who conducted the assessment) entails the imposition of an administrative fine in the amount of 20,000 to 30,000 rubles. For the organization itself, the fine ranges from 70,000 to 100,000 rubles. Repeated violations entail a fine on officials in the amount of 40,000 to 50,000 rubles. or disqualification for a period of one to three years, and for legal entities - in the amount of 100,000 to 200,000 rubles. or administrative suspension of activities for up to 90 days.
Law No. 421 FZ made some changes to the procedure for bringing to administrative liability. In particular, the statute of limitations has been increased.
If previously the statute of limitations for holding people accountable for violations of labor laws was two months, now it is one year (Article 4.5 of the Code of Administrative Offenses of the Russian Federation).
In addition, Art. 19.5 “Failure to comply on time with a legal order (resolution, presentation, decision) of a body (official) exercising state supervision (control), municipal control” of the Code of Administrative Offenses of the Russian Federation was supplemented with Part 23, according to which failure to comply on time or improper fulfillment of a legal order of an official persons of the federal executive body exercising federal state supervision over compliance with labor legislation and other acts containing labor law norms shall entail the imposition of an administrative fine on officials in the amount of from 30,000 to 50,000 rubles. or disqualification for a period of one to three years; for legal entities – from 100,000 to 200,000 rubles.
Let us remind you that by virtue of para. 6 hours 1 tbsp. 357 of the Labor Code of the Russian Federation, state labor inspectors, when supervising compliance with labor legislation, have the right to present employers and their representatives with binding orders to eliminate violations of labor legislation, to restore the violated rights of workers, to bring those responsible for these violations to disciplinary liability or to remove them from positions in the prescribed manner.
And according to clause 1, part 1, art. 17 of Federal Law No. 294 FZ “On the protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control” in the event of detection during an inspection of violations by a legal entity of mandatory requirements, officials of the state (municipal) control (supervision) body within their authorities are obliged to issue a legal entity an order to eliminate the identified violations, indicating the time frame for their elimination.
If the employer does not agree with the order, he can appeal it to the court within ten days from the date of receipt.
We also remind employers that about a year ago changes were made to the Criminal Code, namely to Art. 143, which establishes liability for violation of labor protection requirements if it resulted through negligence in causing serious harm to a person’s health or death. The new edition tightens the responsibility for these violations and divides responsibility depending on how many people died as a result of the violations.
According to Art. 143 violation of labor protection requirements, committed by a person who is entrusted with the obligation to comply with them, if this entailed through negligence the infliction of serious harm to human health, is punishable in one of the following ways:
Fine of up to 400,000 rubles. or in the amount of wages or other income of the convicted person for a period of up to 18 months;
compulsory work for a period of 180 to 240 hours;
correctional labor for up to two years;
forced labor for up to one year;
imprisonment for a term of up to one year with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to one year.
Violation of labor protection requirements through negligence, resulting in the death of a person, is punishable by forced labor for a term of up to four years or imprisonment for the same term with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
The death of two or more persons is punishable by forced labor for a term of up to five years or imprisonment for the same term with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
As we see, more and more attention is being paid to combating violations of labor laws. At the same time, violations in the field of labor protection are particularly highlighted. Both administrative and criminal liability are being tightened, which cannot but make the employer think once again whether everything is in order in his organization in compliance with labor legislation, especially labor protection requirements. It may not hurt to check how responsible employees (HR officers, occupational safety specialists, etc.) perform their job duties. And if necessary, it may be necessary to conduct certification in order to verify the compliance of employees with their positions. After all, even if an official is held accountable, this does not guarantee that the organization itself will not be punished at the same time.
However, let us remind employers that a person is subject to administrative and criminal liability only for those offenses (actions) for which his guilt has been established.
Holding the employer accountable
Article 362 of the Labor Code of the Russian Federation provides that managers and other officials of organizations, as well as employers - individuals guilty of violating labor legislation and other regulatory legal acts containing labor law norms, are liable in cases and in the manner established by the Labor Code of the Russian Federation and others federal laws.Labor legislation clearly and in detail sets out the basic rights and obligations of the parties to labor relations, including the employer.
Article 22 of the Labor Code of the Russian Federation obliges the employer to comply with labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of the collective agreement, agreements and employment contracts.
Also, among the main responsibilities of the employer provided for in Art. 22 of the Labor Code of the Russian Federation, include the following:
Provide employees with work stipulated by the employment contract;
- ensure safety and working conditions that comply with state regulatory requirements for labor protection;
- provide employees with equal pay for work of equal value;
- pay the full amount of wages due to employees within the time limits established in accordance with the Labor Code of the Russian Federation, the collective agreement, internal labor regulations, and employment contracts;
- conduct collective negotiations, as well as conclude a collective agreement in the manner established by the Labor Code of the Russian Federation;
- consider submissions from the relevant trade union bodies and other representatives elected by employees about identified violations of labor legislation and other acts containing labor law norms, take measures to eliminate the identified violations and report the measures taken to the specified bodies and representatives;
- create conditions that ensure the participation of employees in the management of the organization in the forms provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement;
- compensate for harm caused to employees in connection with the performance of their labor duties, as well as compensate for moral damage in the manner and under the conditions established by labor legislation, other federal laws and other regulatory legal acts of the Russian Federation;
- other duties.
Labor legislation, while providing for and clearly formulating the rights and obligations of the parties to labor relations, also establishes their responsibilities.
The Labor Code of the Russian Federation provides for quite a lot of cases when the employer, as the person who bears most of the responsibilities for organizing labor, bears responsibility for violation of labor rights.
The labor lawyer recommends paying attention to the fact that liability for violation of labor law is provided for by the current legislation of the Russian Federation on administrative offenses, as well as criminal law.
Criminal liability of the employer
The most common crimes in the field of labor relations are:1. violation of the confidentiality of correspondence, telephone conversations, postal, telegraph or other messages (Article 138 of the Criminal Code of the Russian Federation);
2. violation of labor protection requirements (Article 143 of the Criminal Code of the Russian Federation);
3. unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age (Article 145 of the Criminal Code of the Russian Federation);
4. non-payment of wages, pensions, scholarships, allowances and other payments (Article 145.1 of the Criminal Code of the Russian Federation).
Listening to telephone conversations, as well as monitoring the electronic correspondence of employees without notifying the latter can be qualified under Art. 138 of the Criminal Code of the Russian Federation. Also, the use of hidden technical means disguised as household items may contain signs of a crime under Art. 138.1 of the Criminal Code of the Russian Federation and is regarded as the illegal acquisition or sale of special technical means intended for secretly obtaining information.
The Constitutional Court of the Russian Federation in Resolution No. 3-P indicated that criminal liability for the illegal production, sale or acquisition of special technical means intended for secretly obtaining information occurs if these are means knowingly intended for secretly obtaining information affecting individual rights guaranteed by the articles 23, 24 (part 1) and 25 of the Constitution of the Russian Federation.
Therefore, video cameras in an employee’s office, about which the employee is notified by signature, are not such. The employer may also oblige employees not to use company equipment for personal purposes.
According to statistics in recent years, the number of people convicted of crimes under Art. 143 of the Criminal Code of the Russian Federation - about 150–200 people per year. At the same time, the number of cases of conviction for the death of a person at work is approximately equal to the number of convicted company executives, if the consequences resulted in serious harm to the health of the employee.
The Supreme Court of the Russian Federation in Resolution No. 1 “On judicial practice in cases of violations of labor protection and safety rules during mining, construction or other work” emphasizes that liability under Art. 143 of the Criminal Code of the Russian Federation are borne by persons who were directly responsible for ensuring compliance with the rules and standards of labor protection in a certain area of work, as well as heads of enterprises and organizations, their deputies, chief engineers, chief specialists of enterprises, if they did not take measures to eliminate the violation of the rules labor protection, compliance with the appropriate rules was not ensured, or if their orders contradicted these rules. Also, in some cases, liability for malfeasance occurs.
However, if the rules were violated by a person not specified in Article 143 of the Criminal Code of the Russian Federation, but which resulted in the consequences described therein, the act should be considered a crime against the person, regardless of whether the victim is related to this proceeding or not.
No one is insured against an accident in the company, but the following aspects will alleviate the employer’s situation to some extent:
1. availability of documentation clearly regulating the boundaries of responsibility of employees and managers;
2. compliance of documentation with the requirements for a particular type of activity;
3. high-quality personnel work to inform employees about safety rules (signatures, reports on regular briefings, etc.).
Art. 145 of the Criminal Code of the Russian Federation, which provides for punishment for unjustified refusal to hire or unjustified dismissal of a pregnant woman or a woman with children under three years of age, is practically not applied in practice. However, if the employer’s actions are qualified under this article, the crime is punishable by a fine of up to two hundred thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or by compulsory work for a period of up to three hundred and sixty hours.
The inaction of the employer, consisting of non-payment of wages, pensions, scholarships, benefits and other payments established by law by the employer or another person authorized to make these payments, is punishable under Art. 145.1 of the Criminal Code of the Russian Federation.
Wages must be paid at least every half month (Article 136 of the Labor Code of the Russian Federation). An act that forms the main element of the crime (Part 1 of Article 145.1 of the Criminal Code of the Russian Federation) can be committed by six non-payments of wages, and a qualified one (Part 2 of Article 145.5 of the Criminal Code of the Russian Federation) - by four.
The following circumstances will also be taken into account:
1. the funds in the current account are sufficient to pay wages, but the employer does not make the payment (if there was an opportunity to pay the employees, but they did not, the act contains all the signs of the objective side of a crime and, depending on the motive for non-payment, can be qualified under Art. 145.1 of the Criminal Code of the Russian Federation);
2. there are not enough funds in the current account to pay off arrears of wages or other payments within the specified period (it will be established whether funds were stolen from the account, and if there was no theft, and the funds will be transferred to the manager or persons who were with him in prior conspiracy, the act must be qualified under Article 145.1 of the Criminal Code of the Russian Federation).
In case of deliberate withdrawal of funds from the company’s accounts, the act is qualified under Art. 145.1 of the Criminal Code of the Russian Federation, only if transactions with these funds were carried out for the purpose of evading repayment of arrears of wages or other payments.
The employer must:
1. keep in mind that the labor legal relationship between the employer and the employee arises from the moment the employee actually starts work (Article 67 of the Labor Code of the Russian Federation). Failure to draw up a written employment contract is not an obstacle to criminal prosecution under articles of the Criminal Code of the Russian Federation that protect the employee from the criminal actions of the employer;
2. in the event of insufficient funds in the account to satisfy all claims of creditors, transfer them in the sequence provided for in paragraph 2 of Article 855 of the Civil Code of the Russian Federation;
3. in cases where non-payment of wages arose as a result of actions aimed at bringing the enterprise out of a crisis state, and the harm prevented is less than the damage caused, file a petition to consider the issue of terminating the criminal case in connection with the commission of the act in a state of extreme necessity or justified risk .
Employer's liability for harm
The employer bears financial liability for harm caused to the health of workers, employees, members of collective farms and other cooperatives, citizens working under civil contracts and assignments, labor injuries that occurred both on the territory of the employer and outside it, as well as during traveling to or from work using transport provided by the employer (Article 3 of the Rules).When a company driver is at fault for an accident, the organization will have to pay for it. This obligation is provided for in Art. 1068 of the Civil Code of the Russian Federation. Moreover, the company is responsible not only for the drivers working on staff. If the driver works for an organization on the basis of a civil contract, you will have to pay for it as well.
If the insurance company fully compensates the injured party, you will not have to pay anything. However, the maximum payment under compulsory third-party liability insurance for vehicle owners may not be enough to cover repairs. Then the organization will have to make up the difference.
The employee's production responsibilities are determined in the employment contract, according to which the employee undertakes to perform work in a certain specialty, qualification or position, subject to internal labor regulations (Article 56 of the Labor Code of the Russian Federation). In addition, if the employee’s actions went beyond the scope of duties defined by the agreement, but were entrusted to him by the administration, then they are also considered committed in the performance of his duties and responsibility for harm should also be assigned to the employer.
A special feature of this type of liability is that, although the actions that caused harm were committed by the employee, the organization will be the subject of liability. Thus, the employee’s actions are regarded as the actions of the employer himself.
In some cases, when the direct cause of harm - a specific employee - cannot be identified, liability, however, can be assigned to a legal entity if a causal link is established between the activities of the legal entity and the harm that occurred. In the event of a legal dispute, the defendant in such cases is the subject of liability, and not the direct cause of harm. The employee is involved as a third party.
In practice, there are often cases of filing claims against enterprises that own sources of increased danger, which include motor transport, for recovery of damage caused as a result of an accident due to the fault of the drivers of this enterprise.
According to Art. 1079 of the Civil Code of the Russian Federation, the culprit of an accident must compensate for the damage caused by the vehicle, unless he proves that it arose due to the intent of the victim.
The owner of a source of increased danger is not responsible for the damage caused if he proves, for example, that the vehicle was stolen from him. Responsibility for damage caused by a source of increased danger in such cases lies with the persons who unlawfully took possession of it.
For example, the driver of a car owned by a company was involved in a traffic accident. The injured party has the right to file a lawsuit against the company, from which the damage caused will be fully recovered. In turn, the organization in accordance with Art. Art. 22, 241, 248 of the Labor Code of the Russian Federation has the right to recover from the guilty driver the amount of damage caused, but not exceeding his average monthly earnings. An employee who is guilty of causing damage to the employer has the right to voluntarily compensate it in full or in part. In this case, the parties have the right to agree on compensation for damage by installments.
It will not be possible to receive the entire amount at once. An employee can give no more than 20 percent of his monthly earnings per month (Article 138 of the Labor Code of the Russian Federation).
The amount of damage caused is recovered from the guilty employee by order of management. The order can be given no later than one month from the date the company finally establishes the amount of damage caused by the employee. Well, if he refuses to compensate him, he will have to go to court.
If the employee quits his job, refusing to compensate for the specified damage, the employer can recover the specified debt in court.
Thus, the organization bears financial liability to the victim in the full amount of material damage caused to him. At the same time, the employer, by way of recourse, recovers compensation from the employee guilty of causing harm (the driver), depending on the limit of financial liability. In practice, this is carried out in various legal proceedings: first, the case is considered based on a claim against the employer, and then, if the employee does not voluntarily compensate for the corresponding damage, the case is considered based on the employer’s claim against the employee.
Since the employer’s ability to recover from an employee the damage caused by him in full is limited by the current legislation of the Russian Federation, it is necessary to pay more attention to the selection of personnel for his organization.
Types of employer liability
The concept of financial liability in the world of labor is interpreted as the obligation of one of the parties to an employment contract to compensate for damage caused through its fault to the other party, in the amount and manner prescribed by law. We can talk about either full financial liability, which involves compensation for direct actual damage in full, or incomplete (limited) liability. The contractual financial liability of the employer to the employee cannot be lower than that provided for by the Labor Code. In cases specified by law, the employee bears limited liability and pays the cost of damage in an amount not exceeding the average salary.As a rule, the reason for the onset of financial liability is an offense, as a result of which the injured party receives certain damage.
The following types of employer's liability for harm caused to an employee are distinguished:
For non-receipt of earnings due to illegal deprivation of the opportunity to work (we can talk about a violation of the right to work both in the case of illegal dismissal, transfer or suspension from work, and in case of illegal refusal of employment, illegal entry into the work book of entries discrediting the employee, etc.) d.) - Article 234 of the Labor Code of the Russian Federation;
for causing damage to the personal property of an employee - Article 235 of the Labor Code of the Russian Federation;
for delays in wages and other types of payments due to the employee - Article 236 of the Labor Code of the Russian Federation;
for causing moral harm - Article 237 of the Labor Code of the Russian Federation.
It should be remembered when the employer’s financial liability arises.
The following are considered mandatory conditions for its occurrence:
The presence of real (actual) damage;
proven guilt in actions or lack of actions on the part of the employer;
absence of circumstances exempting from liability;
a cause-and-effect relationship between the employer’s guilty action or inaction and the damage caused to the employee.
According to Article 232 of the Labor Code of the Russian Federation, which regulates the procedure for compensation for damage within the framework of labor relations, the parties have the right to specify the financial responsibility of the parties to the employment contract. To do this, it is necessary to include a corresponding clause in the contract or additional agreement to it, and the contractual liability of the employer to the employee cannot be lower than that provided for by the Labor Code of the Russian Federation or other federal laws. Termination of an employment contract after causing damage does not relieve the guilty party from financial liability.
Today, illegal dismissal from work and transfer to another job without the employee’s consent are considered common reasons for going to court to hold an employer financially liable. The subject of a lawsuit may also be delayed wages. To determine the amount of the employer’s financial liability, which in any case will be full, objective criteria are used.
If we are talking about personal property, its market value is assessed on the day of compensation for damage, and compensation can be either in cash or in kind (but only with the consent of the employee). When drawing up an application for compensation for damage, the employee can immediately indicate the value of the property, and the employer is obliged to consider the received claim within ten days and make a decision on it. If the decision is negative or there is no response after the specified period, the employee has the right to go to court. The injured party, in this case the employee, must prove the amount of damage (Article 233 of the Labor Code of the Russian Federation).
The amount of payment for illegal deprivation of an employee’s right to work is determined by the body considering the case. And if there is a delay in wages and other payments legally due to the plaintiff, you will have to compensate not only the delayed or untimely paid amount, but also interest for the delay. As for the amount of compensation for moral damage, which is always paid in cash, it is determined by agreement of the parties to the employment contract or (in the event of a conflict) by the court, regardless of the property damage subject to compensation. As a rule, the court takes into account the circumstances of the particular case, in particular the degree of guilt of the employer, as well as the nature and extent of the suffering caused to the employee.
Employer liability insurance
Conducting a civilized business implies a conscientious and responsible attitude towards all partners and contractors. In this case, hired workers can easily be included in this category. The enterprise is obliged to provide them with safe working conditions and comply with all clauses of the employment contract - timely payment of wages, provision of benefits, ensuring labor safety, etc. Any violation of contractual relations may lead to claims and payment of compensation for damage caused.It was as a result of the growth of employer liability, the complication of business structure and the formation of corporate governance that the need for employer liability insurance arose. The employer in this case acts as the insured who is responsible for non-compliance or improper fulfillment of the terms of the employment contract.
In accordance with the Civil Code of the Russian Federation, the Federal Law of the Russian Federation “On compulsory social insurance against industrial accidents and occupational diseases”, the Law “On the organization of insurance business in the Russian Federation”, other regulations, general rules for insurance of employer liability for harm caused to employees, the parties enter into enterprise liability insurance contracts and regulate the relations arising between the insurer and the employer (policyholder) regarding compensation for harm caused to the life and health of persons in labor relations with him (employees) during the performance of their labor duties, as well as property damage, caused to employees due to loss or damage to property and/or incurring additional expenses.
Under an employer's liability insurance contract in terms of causing harm to the life and health of employees, the insurer undertakes, for a fee stipulated by the contract (insurance premium), upon the occurrence of an event (insured event) stipulated in the contract, to pay insurance compensation in the amount exceeding the provision for compulsory social insurance carried out in accordance with Federal Law of the Russian Federation “On compulsory social insurance against accidents at work and occupational diseases.”
Under an employer's liability insurance contract for property damage, the insurer undertakes, for a fee stipulated by the contract (insurance premium), upon the occurrence of an event stipulated in the contract (insured event), to pay insurance compensation in the amount of direct actual damage to property, but not exceeding the liability limit established under the contract.
Employees for the purposes of these rules include:
1. citizens who have an employment relationship with the employer on the basis of an employment agreement (contract);
2. citizens performing work in accordance with civil contracts concluded with the policyholder (contract, assignment, etc.), provided that the policyholder, within the framework of the civil contract, is obliged to pay insurance premiums for compulsory social insurance.
If this is specifically stipulated by the enterprise liability insurance contract, in accordance with the general rules, employees may include students undergoing practical training with the insured, or other individuals bound by contractual obligations with the insured.
The object of enterprise liability insurance is the property interest of the insured, who, in accordance with the civil legislation of the Russian Federation, bears financial liability for harm caused to employees due to death, injury or other damage to health during the performance of their work duties, as well as damage to their property and additional expenses.
An insurance risk is an expected event against which liability insurance is provided under the contract.
An insured event is the presentation by employees or their legal heirs in accordance with the norms of the current civil legislation of the Russian Federation during the period of validity of the liability insurance contract under the contract of justified property claims to the insured for compensation for harm caused to employees in the performance of their labor duties or the entry into force of a court decision to satisfy claims for compensation for damage caused:
1. in cases of harm to life and health - in the amount provided for by the civil legislation of the Russian Federation in the part exceeding the provision received by the injured person or his heirs for compulsory social insurance against accidents and occupational diseases;
2. in cases of property damage (damage to property and additional expenses) - in the amount of direct actual damage, but not more than the liability limit established under the insurance contract.
Industrial accidents include: injuries, incl. received as a result of bodily injury by another person, acute poisoning, acute occupational diseases, heat stroke, burns, frostbite, drowning, electric shock, lightning, damage resulting from explosions, accidents, destruction of buildings, structures and structures, accidents in transport, road traffic accidents, and other emergency situations when the employer’s fault is proven and the victims have every reason to demand compensation from the employer in accordance with the procedure established by law.
An accident is considered to have occurred due to the fault of the employer if it occurred as a result of his failure to provide healthy and safe working conditions (failure to comply with labor protection rules, safety regulations, industrial sanitation, etc.) and in other cases provided for by current legislation or a decision that has entered into legal force court.
An insured event in relation to an employee’s personal property is considered to have occurred if it occurred in the insurance territory as a result of:
1. fire;
2. explosion;
3. illegal actions of third parties;
4. mechanical damage that occurred through the fault of the employer (due to non-compliance with safety regulations, etc.) and resulted in death, destruction, damage to personal property and incurring additional expenses in connection with the damage.
An insured event is considered to have occurred only if it occurred as a result of named events that occurred through the fault of the policyholder.
The employer's guilt is established in accordance with current Russian legislation out of court or in court.
An event is recognized as an insured event if it occurred in the insurance territory:
1. on the territory of the enterprise or in another place of work during working hours, including prescribed breaks;
2. during business trips, as well as when performing actions on behalf of the administration;
3. on the way to or from work on transport owned by the employer or driven by an authorized representative of the employer;
4. during working hours on public transport or along the route on foot, if the performance of work duties involves movement;
5. during working hours on personal passenger transport if there is an order from the administration for the right to use it for business trips (issued with written permission from the administration to use the employee’s personal vehicle for official purposes).
According to the general rules of liability insurance under a contract, under no circumstances is the insurer liable for compensation for damage caused to the life and health of workers in the amount of payments compensated by the social insurance authorities of the Russian Federation in accordance with the Federal Law of the Russian Federation “On compulsory social insurance against accidents at work and occupational diseases."
In any case, in accordance with the general rules, the following is not insured:
1. liability of the insured for damage caused by its employees in the performance of their labor (official, official) duties to legal entities and individuals who are not employees of the insured, to third parties;
2. liability of the insured for damage caused to third parties as a result of design, prescription and other defects in manufactured, sold goods, works, services;
3. liability of the policyholder operating sources of increased danger, including vehicles, for damage caused to third parties;
4. liability for damage in connection with the performance by the victim of work not provided for by job descriptions, employment contract and current legislation;
5. harm resulting from natural death, suicide, as well as an accident that occurred when the employee committed illegal actions;
6. harm to life and health caused as a result of military operations, civil unrest, strikes;
7. harm associated with any exposure to ionizing radiation and penetrating radiation;
8. harm to life and health resulting from the extraction, processing or production of asbestos or products made from it, as well as associated with its effects on the body;
9. harm to life and health resulting from exposure to diacetyl;
10. harm to life and health resulting from “force majeure” circumstances (force majeure) or the intent of the victim;
11. harm to life and health caused by workers hired by the policyholder in violation of the current labor legislation of the Russian Federation;
12. fines and penalties imposed on the policyholder by government agencies supervising and monitoring compliance with labor safety rules and regulations, as well as claims against the policyholder by government agencies;
13. mental trauma and depression, mental and psychological disorder, shock, racial and sexual discrimination, slander and violation of honor, dignity and business reputation, as well as wrongful detention or arrest;
14. damage associated with the theft of employees’ property, if the employer’s liability has not been established.
If specifically provided for in the insurance contract, the insurer is liable in the following cases of harm to the life, health of workers and/or in cases of property damage (special risks):
1. occupational diseases, except for acute poisoning and acute occupational diseases caused by a single exposure (during one work shift) to the human body of toxic substances;
2. diseases that are not occupational, but are caused by unfavorable working conditions;
3. insect and reptile bites, bodily injuries caused by animals;
4. damage caused to banknotes, securities, valuables and vehicles, property belonging to the injured employees (except for personal belongings that were directly on (with) the employee at the time of the accident);
5. moral damage (only if an appropriate court decision is made regarding compensation for moral damage).
These cases can be insured for an additional fee if there are appropriate additional provisions in the insurance contract.
The insured amount under the insurance contract and liability limits for groups of insured workers and insurance risks are established by agreement of the parties when concluding the insurance contract.
The amount of the insured amount (limits of liability) can be established on the basis of the annual wage fund of employees working under an employment agreement (contract) and the number of employees performing work in the insurance territory under civil contracts concluded with the insured.
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From the point of view of tax legislation, in most cases the organization evades taxes. As a rule, the manager (chief accountant, accountant, founder, etc.) as an individual is brought to criminal liability. Judicial practice follows the path established in paragraph 24, which states that an individual or legal entity who, in accordance with the law (Articles 1064 and 1068 of the Civil Code of the Russian Federation) is liable for damage caused by a crime (Article 54) can be brought as a civil defendant Code of Criminal Procedure of the Russian Federation). For example, it is concluded that the head of the organization, committing illegal actions, was guided by criminal intent aimed at evading taxes, which, when implemented, caused damage to the budget of the Russian Federation (Parts 1 and 2 of Article 124 of the Civil Code of the Russian Federation). Based on the factual circumstances of the case established by the court, damage to the Russian Federation in the form of unpaid taxes, penalties, including unlawful compensation from the budget for value added tax, was caused by the manager as an individual heading a legal entity and in accordance with Art. 27 of the Tax Code of the Russian Federation, being his legal representative. The refusal to satisfy the civil claim is not based on the law, since the interdistrict tax inspectorate actually made demands not for the collection of taxes, but for compensation for damage caused by the crime. In another, the Supreme Court of the Russian Federation determined that damage to the budget was caused by a taxpayer organization through the fault of its director, authorized to represent the interests of the said organization, and therefore he is the person responsible for compensating the damage caused to the state. A civil claim is also collected in the event that a criminal case against the head of an organization is terminated by a decree due to the expiration of the statute of limitations, which was noted by the Supreme Court of the Russian Federation in.
However, it should be noted that the practice is not established. Thus, in his own he came to the conclusion that, within the meaning of the law, in cases of crimes under Art. Art. 198, 199, 199-1,199-2 of the Criminal Code of the Russian Federation, an individual or entity, which, in accordance with civil law, is liable for damage caused by a crime. That is, not only an individual, but also a legal entity that is obliged to pay taxes can be brought as a civil defendant for tax crimes, as evidenced by the name “Tax evasion from an organization.” In this case, at the time the crime was committed, the taxpayer was an LLC, however, in violation of the requirements of Art. 45 of the Tax Code of the Russian Federation, and Art. 54 of the Code of Criminal Procedure of the Russian Federation, LLC "..." was not involved as a civil defendant in this criminal case.
Anastasia Morgunova, director of the tax consulting department of online accounting “My Business”
Labor relations are largely based on the employer's trust in the employee. Personnel are provided with the necessary tools and equipment, often of high material value (for example, office equipment). In some cases, the employee is given large sums of money on account, for the safety or strict intended use of which he is responsible. In the event of loss, damage or shortage of property entrusted to an employee, the organization has the right to legally recover damages from the culprit.
Anastasia Morgunova, director of the tax consulting department of online accounting “My Business,” explains how to correctly record the fact of causing harm, establish its size and investigate the circumstances in which it arose.
Under what conditions does the employee’s financial liability to the employer arise?
Occurs when the following conditions are simultaneously present:
- causing direct actual damage. Confirmation of the fact of damage is, for example, an act of discovery of damage caused by an employee, an explanatory note from the employee regarding the fact of damage, inventory materials and other evidence
(in particular, the damaged property itself);
- illegality of actions or employee inaction. For example, damage arose as a result of the fact that the employee did not fulfill his duties established by the employment contract, job description, internal labor regulations and other local acts of the organization;
- causation between the employee’s unlawful actions or inaction and the direct actual damage that occurred. The cause-and-effect relationship must be obvious. For example, an employee dropped a computer on the floor, which then stopped working;
- employee's fault in causing damage to the employer. Guilt is understood as intent or carelessness (frivolity, negligence) in the employee’s actions that led to
to damage to the employer.
Confirmation: part 1 art. 233 of the Labor Code of the Russian Federation, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.
A comment:When establishing the employee’s guilt, it is necessary to find out whether he could have acted differently in this situation, whether he had the opportunity to avoid material losses. There are circumstances that completely exclude the guilt of the person who caused the damage (if, of course, he can confirm their presence with sufficient evidence). This is an extreme necessity, an act of force majeure, a normal economic risk, necessary defense, as well as the employer’s failure to fulfill the obligation to provide adequate conditions for storing property. The Labor Code of the Russian Federation, mentioning these concepts in Art. 239, does not reveal their essence. I believe that in this case it is necessary to be guided by other legal acts, in particular, Art. 401 Civil Code of the Russian Federation, Art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 Code of Administrative Offenses of the Russian Federation. para. 2 clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006. On the websitewww.moedelo.org You can learn through practical examples how to apply the above concepts to employment relationships.
What is the financial responsibility of the employee to the employer?
The employee's responsibility lies in the obligation to compensate for direct actual damage caused to the employer (losses that can be accurately calculated). At the same time, the employer does not have the right to recover lost income (lost profits) from the employee.
Direct actual damage means (in total):
Real decrease in the employer's cash assets or deterioration in its condition
(including property of third parties held by the employer, if he is responsible for its safety);
The need for the employer to make costs or excess payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
For example, direct actual damage may include:
Lack of cash or property assets;
Damage to materials and equipment;
Costs for repairing damaged property;
Payments for forced absence or downtime;
The amount of the fine paid, which was applied to the employer due to the fault of the employee.
The damage that the employee caused to third parties means all amounts paid by the employer to third parties to compensate for the damage. In this case, the employee can be held liable only within these amounts and provided that there is a cause-and-effect relationship between his culpable actions (inaction) and causing damage to third parties.
Confirmation: part 1, 2 art. 238 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.
To what extent must the employee compensate for the damage caused?
The employee must compensate for damages either in the amount of his average monthly earnings or in full. It depends on what financial responsibility is assigned to the employee.
As a general rule, the employee bears limited liability for damage caused - within the limits of your average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases it may be entrusted to him full financial responsibility, that is, the obligation to compensate the damage caused to the employer in full (Article 242 of the Labor Code of the Russian Federation).
Cases of full financial liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to the employee in accordance with the Labor Code of the Russian Federation or federal laws. So, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for damage caused to the employer.
In addition, the employee bears full financial responsibility if he caused damage as a result of a crime, an administrative offense, while drunk, with the intent to cause harm to the employer, and in some other cases.
Such liability also arises in the case when the employee was entrusted with valuables under an agreement on full financial liability, concluded with him individually or as part of a team (team), or he received them under a one-time document (power of attorney). It should be remembered that an agreement on full financial liability can only be concluded with an adult employee (over 18 years of age).
Confirmation: Art. 2439-245 of the Labor Code of the Russian Federation, paragraphs 9-12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006.
A comment:Employers sometimes consider concluding an agreement on full financial responsibility to be a “panacea for all ills.” Some even offer to sign such a document to all employees accepted into the organization without exception. However, it should be taken into account that agreements on full financial liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Resolution of the Ministry of Labor of Russia No. 85 of December 31, 2002 (materially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This is clearly demonstrated by judicial practice.
Several employers tried to recover damages in full from employees through the court, however, compensation for damages only in the amount of the average monthly earnings of the defendants was recognized as legal. The fact is that agreements on full financial liability were unlawfully concluded with employees who did not fall under the above lists (a production department specialist and a watchman). These employees were not directly involved in the maintenance or use of monetary, commodity values or other property. The court indicated that these lists of positions (works) are exhaustive and are not subject to broad interpretation (Determination of the Supreme Court of the Russian Federation No. 18-B09-72 of November 19, 2009, Determination of the Moscow City Court No. 33-19538 of June 24, 2011, Determination of the Primorsky Regional Court No. 33-2124 of March 29, 2010).
How to determine the amount of material damage (losses) caused by an employee?
You need to determine the amount (as a general rule) based on market prices for property that has suffered damage. They must be valid on the day the damage occurred (for example, on the day the shortage of a particular property was discovered). In this case, the amount of material damage cannot be lower than the value of the property according to accounting data (taking into account its wear and tear).
Confirmation: part 1 art. 246 of the Labor Code of the Russian Federation.
At the same time, separate regulations may establish a different procedure for determining the amount of material damage. For example, for the theft or shortage of narcotic drugs or psychotropic substances, an employee is liable in the amount of 100 times the amount of direct actual damage caused to the organization (Clause 6, Article 59 of Federal Law No. 3-FZ of January 8, 1998).
Confirmation: Art. 238, part 2 art. 246 of the Labor Code of the Russian Federation.
How to confirm the amount of material damage (loss)?
It is necessary to confirm the amount before making a decision on compensation for material damage (losses) by the employee. The procedure for confirming the amount depends on the type of material damage caused.
As a general rule, to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this purpose, the organization has the right to create a special commission with the involvement of the necessary specialists (Part 1 of Article 247 of the Labor Code of the Russian Federation). For example, such a check is necessary if the damage occurred as a result of necessary defense. In this case, the employee’s financial liability is completely excluded (Article 239 of the Labor Code of the Russian Federation).
If facts of theft, abuse or damage to property are detected, the above check is carried out in the form inventory(clause 2 of article 12 of Federal Law No. 129-FZ of November 21
1996). Its results must be indicated in the comparison sheet (form No. INV-18 or No. INV-19).
Confirmation: clause 4.1 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995
The amount of material damage resulting from an accident that occurred through the fault of an employee can be determined without conducting an internal audit. This is due to the fact that the reasons for the occurrence of material damage and its amount can be justified by:
Documents received from traffic police officers upon the accident (as confirming the cause of the damage);
Documents received from repair and insurance companies (confirming the amount of damage caused by the at-fault employee).
Once the amount of material damage has been determined, the organization must request from the employee written explanations of the reasons why the damage occurred. If the employee refuses (evades) to provide such an explanation, a report must be drawn up.
Confirmation: Part 2 of Art. 247 of the Labor Code of the Russian Federation.
How to reflect in accounting a shortage that arose due to the fault of the financially responsible person (other guilty parties) and was identified as a result of an inventory?
The identified shortage (taken into account after the inventory in the debit of account 94 “Shortages and losses from damage to valuables”) must be reflected as a settlement with the financially responsible employee (other person) recognized as the culprit.
The postings in this case will be as follows:
DEBIT 73-2 (76-2) CREDIT 94
Repayment of debt for the shortage by the employee (other guilty person) is reflected.
The market value of the property, which is compensated by the guilty person, may exceed the value at which the property is recorded. In this case, the organization must make the following entries:
DEBIT 73-2 (76-2) CREDIT 94
The shortage in the amount of the value at which the property is reflected in accounting is attributed to the financially responsible person (another guilty person);
DEBIT 73-2 (76-2) CREDIT 98-4
The difference between the amount to be recovered from the guilty party and the value at which the property is recorded is reflected.
As the guilty person collects the money due from him, the specified amount is written off as other income in proportion to the repaid debt:
DEBIT 50 (51, 70) CREDIT 73-2 (76-2)
Repayment of debt for the shortage by the employee (other guilty person) is reflected;
DEBIT 98-4 CREDIT 91-1
The difference between the amount to be recovered from the guilty person and the cost of the missing valuables as part of other income is reflected.
If a shortage that arose due to the fault of a financially responsible person (other guilty parties) is identified in the reporting period, but relates to previous reporting periods, then it must be taken into account as part of future income:
DEBIT 94 CREDIT 98
The shortage related to previous periods, but identified in the reporting period, is reflected;
DEBIT 73-2 (76-2) CREDIT 94
The shortage identified in the reporting period, but relating to previous periods, is attributed to the financially responsible person (another guilty person).
As the amount due from the guilty person is collected, the shortfall is written off as other income:
DEBIT 98 CREDIT 91-1
The shortfall identified in the reporting period, but relating to previous periods, is reflected in income.
The guilt of the financially responsible person (other guilty persons) must be documented. Supporting documents may be a decision of investigative or judicial authorities, a conclusion on the fact of damage to valuables, which is issued by the technical control department or relevant specialized organizations (quality inspections, etc.).
Confirmation: clauses 5.1, 5.2 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995, Instructions for the Chart of Accounts.
Also on the website www.moedelo.org you will find the necessary accounting entries in order to reflect:
Withholding material damage caused to the organization from the employee’s salary;
Accountable amounts issued to an employee for the performance of an official task that were not returned on time, as well as the deduction of such amounts from the employee’s salary;
Shortage of property that belongs to the organization, but is not listed on the balance sheet accounts, if the cause of the shortage is the fault of the employee (financially responsible or other guilty person), and others.
What is the maximum amount of deductions for material damage from an employee’s salary?
The maximum amount of deductions for amounts of material damage from an employee should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation).
At the same time, no more than 20 percent can be withheld from an employee’s monthly salary (Part 1 of Article 138 of the Labor Code of the Russian Federation).
The amount of damage that exceeds the average monthly salary of the employee (if brought to full financial liability), if the perpetrator does not agree to compensate it voluntarily, can be recovered from him only through the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).
An employee can voluntarily compensate for the damage caused by him (both with limited and full financial liability). In this case, by agreement of the parties, compensation for damage by installments is allowed. In addition, the employee must submit to the employer a written obligation to compensate for damages, in which it is necessary to indicate specific payment terms (Part 4 of Article 248 of the Labor Code of the Russian Federation).
An employer can confirm its consent to payment by installments:
Either a permissive inscription (for example, “I don’t object” or “allow”) on the employee’s written obligation;
Or a separate administrative document, which will specify the procedure for settlements (for example, an order, a decree).
If an employee gave a written obligation to compensate for material damage, and then quit and refused to pay the debt, the outstanding debt can only be recovered through the court.
Confirmation: part 4 art. 248 of the Labor Code of the Russian Federation.
The employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.
Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.
Article 239. Circumstances excluding the financial liability of an employee
The employee's financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.
Article 240. The employer’s right to refuse to recover damages from an employee
The employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the organization's property may limit the specified right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of local government bodies, and the constituent documents of the organization.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
Article 241. Limits of employee’s financial liability
For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.
Article 242. Full financial liability of the employee
The employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
Financial liability in the full amount of damage caused may be assigned to the employee only in cases provided for by this Code or other federal laws.
Employees under the age of eighteen bear full financial liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative offense.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
Article 243. Cases of full financial liability
Financial liability in the full amount of damage caused is assigned to the employee in the following cases:
1) when, in accordance with this Code or other federal laws, the employee is held financially liable in full for damage caused to the employer during the performance of the employee’s job duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or other toxic substances;
(as amended by Federal Law No. 90-FZ of June 30, 2006)
5) damage caused as a result of the employee’s criminal actions established by a court verdict;
6) damage caused as a result of an administrative violation, if established by the relevant government body;
7) disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
(as amended by Federal Law No. 90-FZ of June 30, 2006)
8) damage was caused while the employee was not performing his job duties.
Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization and the chief accountant.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
Article 244. Written agreements on the full financial responsibility of employees
Written agreements on full individual or collective (team) financial liability (clause 2 of part one of Article 243 of this Code), that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen years and directly servicing or using monetary, commodity values or other property.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, are approved in the manner established by the Government of the Russian Federation.
Article 245. Collective (team) financial liability for damage
When employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full, collective (team) financial liability may be introduced.
A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team).
Under an agreement on collective (team) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.
In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When recovering damages in court, the degree of guilt of each member of the team (team) is determined by the court.
Article 246. Determination of the amount of damage caused
The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of depreciation of this property.
Federal law may establish a special procedure for determining the amount of damage subject to compensation caused to an employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
Article 247. The employer’s obligation to establish the amount of damage caused to him and the cause of its occurrence
Before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. To conduct such a check, the employer has the right to create a commission with the participation of relevant specialists.
Requiring a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, a corresponding act is drawn up.
(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)
The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in the manner established by this Code.
Article 248. Procedure for recovery of damages
Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.
If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.
(as amended by Federal Law No. 90-FZ of June 30, 2006)
If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.
An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.
With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.
Compensation for damages is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.
Article 249. Reimbursement of costs associated with employee training
(as amended by Federal Law No. 90-FZ of June 30, 2006)
In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after completion of training, unless otherwise provided by the employment contract or training agreement.
Article 250. Reduction by the labor dispute resolution body of the amount of damage to be recovered from the employee
The labor dispute resolution body may, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee.
The amount of damage to be recovered from the employee is not reduced if the damage was caused by a crime committed for personal gain.
According to Article 232 of the Labor Code of the Russian Federation, a party to an employment contract that causes damage to the other party must compensate for this damage. The amount of financial liability may be specified in the employment contract. At the same time, the contractual liability of the employer cannot be lower, and the employee higher, than provided for in the Labor Code of the Russian Federation.
Please note: termination of an employment contract does not entail the release of a party from financial liability.
8.2.1. Liability of employers
We have already said that the employer is now responsible for the delay in paying wages to employees. This is established by Article 236 of the Labor Code of the Russian Federation.
Let's consider other grounds for the employer's financial liability.
According to Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. For example, this is necessary if earnings are not received as a result of:
Illegal removal of an employee from work, his dismissal or transfer to another job;
The employer’s refusal to execute or untimely execution of the decision of the labor dispute resolution body or the state legal labor inspector to reinstate the employee to his previous job;
Delays by the employer in issuing a work book to an employee, or entering into the work book an incorrect or non-compliant wording of the reason for the employee’s dismissal;
Other cases provided for by laws and collective agreement.
And on the basis of Article 234 of the Labor Code of the Russian Federation, an employer who causes damage to an employee’s property compensates for this damage in full.
The amount of damage is determined based on market prices in force in the area at the time of compensation.
If the employee agrees, then the damage can be compensated by providing the same thing. Damage is compensated based on the employee’s application. The employer is obliged to consider the application and make an appropriate decision within ten days from the date of its receipt.
If the employee disagrees with the employer’s decision or does not receive a response within the prescribed period, the employee has the right to go to court.
8.2.2. Material liability of employees
As before, in accordance with Article 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for his direct actual damage, that is, a real decrease in the employer’s available property or deterioration in the condition of this property and the costs that the employer will make to purchase new property or repair old ones. The employee is also obliged to compensate for damage to the property of third parties if it is in the possession of the employer and he is responsible for its safety.
Lost income (lost profits) cannot be recovered from the employee.
However, the employee is not always liable for damage caused to the employer. Article 239 of the Labor Code of the Russian Federation defines a list of circumstances that exclude the financial liability of an employee.
The law includes the following circumstances:
Force majeure;
Normal business risk;
Urgent necessity;
Necessary defense;
Failure by the employer to fulfill the obligation to provide conditions for the preservation of property entrusted to the employee.
Article 241 of the Labor Code of the Russian Federation defines the limits of an employee’s financial liability: for damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by the Labor Code of the Russian Federation or laws.
In accordance with Article 242 of the Labor Code of the Russian Federation, the employee’s full financial liability consists of his obligation to compensate for the damage caused in full. It can be assigned to the employee only in cases provided for by the code or laws.
And employees under 18 years of age bear full financial responsibility only for intentional damage, for damage caused while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative violation.
Cases of full financial liability are established by Article 243 of the Labor Code of the Russian Federation:
When, in accordance with the code or laws, the employee is held financially liable in full for damage caused to the employer during the performance of the employee’s job duties;
Lack of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
Intentional causing of damage;
Causing damage while under the influence of alcohol, drugs or toxic substances;
Causing damage as a result of criminal actions of an employee established by a court verdict;
Causing damage as a result of an administrative violation, if established by the relevant government body;
Disclosure of information constituting a secret protected by law (official, commercial or other), in cases provided for by law;
Causing damage not while the employee was performing his job duties.
Please note: on the basis of an employment contract, the head of the organization, his deputies, and the chief accountant may bear full financial responsibility under the employment contract.
Article 245 of the Labor Code of the Russian Federation speaks of collective (team) financial responsibility.
Written agreements on full individual or collective financial responsibility are concluded with employees who have reached the age of 18 and directly service or use monetary, commodity values or other property.
Currently, the List approved by Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions of December 28, 1977 N 447/24 is still in effect. It also approves the standard form of an agreement on full financial liability.
Financial liability may also be assigned to several employees who together perform work related to the storage, processing, sale, transportation, use or other use of the valuables transferred to them. In this case, it is often impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on full financial responsibility.
According to Article 245 of the Labor Code of the Russian Federation, in this case, an agreement on collective (team) financial liability for damage is concluded between the employer and these employees. Under this agreement, values are entrusted to a predetermined group of persons. They bear full financial responsibility for their shortage. To be released from financial liability, a member of a team (team) must prove the absence of his guilt.
With voluntary compensation for damage, the degree of guilt of each member of the team is determined by agreement between all members of the team and the employer.
And if damages are recovered through the court, then it determines the degree of guilt of each member of the team (team).
How is the amount of damage caused to the employer determined?
It depends on the actual losses, which are calculated based on market prices prevailing in the area on the day the damage occurred. However, the market value of the property cannot be lower than the value of the property according to accounting data, taking into account the degree of depreciation of the property. The law may establish a special procedure for determining the amount of damage caused to an employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.
The procedure according to which the employer determines the amount of damage caused to him is established in Article 247 of the Labor Code of the Russian Federation.
As before, recovery from the perpetrator of damages not exceeding the employee’s average monthly earnings is carried out by order of the employer. The order can be made no later than a month from the date of final determination by the employer of the amount of damage caused by the employee.
But if the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer and its amount exceeds the employee’s average earnings, then the recovery is carried out by the court.
And if this procedure is not followed, then the employee has the right to go to court.
An employee who causes damage to the employer may voluntarily compensate it in full or in part. If the administration does not object, then compensation for damage by installments is allowed.
In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected through the court.
With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.
Note that even if an employee was brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage, this does not relieve him of the obligation to compensate for damage.
In the employment contract, the employer can write that the employee who studied at the expense of the company must work for it for a certain time. This can also be specified in the agreement on training the employee at the expense of the employer.
And if he quits without a good reason before the end of this period, then the employer, in accordance with Article 249 of the Labor Code of the Russian Federation, can recover from him the funds spent on training.
Example
The company sent the employee to a three-month advanced training course and paid the cost of training - 30,000 rubles. In the agreement on training the employee at the expense of the employer, concluded on March 4, 2002, it was stated that Polyakova I.G. Must have worked in the organization until January 14, 2003.
However, on August 12, 2002, the employee submitted her resignation at her own request.
The administration of the enterprise decided that the employee should reimburse her 10,000 rubles. towards the cost of her training.
To recover the amount of damage, the administration of Quadro LLC went to court, and it granted its claim.
