Please explain, is the minimum wage determined by salary calculation, or by the remaining amount issued in hand?

Every work deserves a decent reward. The state has provided a minimum limit guaranteed to workers, which employers can set during a regular full-time employment schedule - the so-called minimum wage. Its dimensions are regularly reviewed and adjusted from time to time. Many social payments and various deductions, as well as taxes and fines, are calculated on the basis of the minimum wage. But what to do if the salary is below this minimum?

Let's consider in which situations this is possible and in which it is illegal, what liability an employer faces for violating the rights of employees, and what both parties should do.

Is it legal for a resigned employee, who for three years received wages below the regional minimum wage, to demand that he be paid additional wages to the minimum ?

Minimum wage may vary

The minimum wage for the monthly labor standard worked is set at the state level. Once a year it is reviewed and increased in proportion to the level of inflation. The “minimum wage” in 2021, adopted by Federal Law No. 421-FZ of December 28, 2017, is 9,489 rubles.

FOR YOUR INFORMATION! Compared to last year, the minimum wage increased by 1,689 rubles. – from the amount of 7800 rubles.

The wage below which the employer does not have the right to set wages set by the state is called the federal minimum wage (Article 133 of the Labor Code of the Russian Federation) .

Local authorities have the right to revise the minimum wage depending on the parameters of specific constituent entities of the Russian Federation, but only upward. This minimum wage is called regional . The largest “local” minimum wage is rightly set in the northern regions of the country, for example, in the Magadan region in 2021 it will range from 19,500 to 21,060 rubles, including compensation and incentive payments. This remuneration figure will be adopted if agreement is reached between the three interested parties:

regional authorities;
associations of trade unions;
local union of industrialists and entrepreneurs.

The adoption of a regional minimum wage means that all employers in the region are obliged by default to adhere to this minimum limit. But, unlike the federal minimum wage, employers have a choice: within a month they can refuse to recognize the increased value established in the region. To do this, you need to publish a reasoned refusal in the local media within this period. In such cases, they must adhere to the requirements regarding the federal minimum wage.

Question: The organization is located in an area equated to the regions of the Far North. Employees' wages must not be lower than the minimum wage (minimum wage). Should the regional coefficient and percentage bonus be included in the minimum wage? View answer

Can the salary be less than the minimum wage?

First of all, it’s worth understanding what we mean when we talk about a salary less than the minimum wage.

Minimum wage (minimum wage)
This is the salary below which the level of wages cannot be. It is established at the federal level. It should be noted that the minimum wage performs a number of functions. For example, on its basis the amount of benefits for pregnant and disabled citizens is established.
Minimum salary
Just as in the previous case, this is the level of wages below which a salary is impossible. But it differs from the first in that it is established at the regional level, and not throughout the country. Thus, there are two minimum wages at once, and if an employee receives a salary lower than the tariff established in the region, he has the right to file a complaint.

An employer who sets a salary less than the minimum wage will be forced to pay fines for the violation. Both he and the accountant can be fined.

The fine may be as follows:

For officials - from 1 to 5 thousand rubles.
For legal entities - from 30 to 50 thousand rubles.

The basis for imposing a fine is the fact that the employer paid a salary less than the minimum wage for two or more months in a row. But it is necessary to establish the reason why the salary was assigned less than the minimum wage. In some cases, the severity of the crime will be considered lesser, in others greater, so the circumstances largely determine the degree of responsibility for a salary less than the minimum wage.

However, situations are possible when the employer has the right to set an employee’s salary less than the minimum wage. To do this, it is necessary to spell out the details of salary calculation without errors, coordinating them with the requirements of Article 129 of the Labor Code of the Russian Federation. What does she say about the salary being less than the minimum wage? It's quite simple. The employer has the right to set a salary less than the minimum wage, but on the condition that he introduces bonuses, allowances or compensation that allow him to reach the minimum wage level.

If these conditions are met, and the employee receives total payments not less than the minimum wage, then the employer cannot be accused of violation.

Important! The natural question is whether it will be considered a violation if, after deducting taxes from the salary, the salary becomes less than the minimum wage. In this case, the manager does not bear any responsibility: for his part, he fulfilled all the requirements of the law, since officially the salary is not less than the minimum wage.

In 2021, it is impossible to assign a salary less than the minimum wage - 12,130 rubles - the amount legally established by December 27, 2019 N 463-FZ. In the second half of the year, due to inflation (4%), the amount will increase, and it will be prohibited to set a salary less than the new minimum wage.

Close attention should be paid to this, since some salaries that are currently set for workers will need to be increased so that wages do not fall below the new minimum wage. For example, if before January 1, 2021, an employee received a salary of 11,600 rubles, then with the onset of the third quarter, this amount will need to be increased by at least 540 rubles so that the salary does not end up being less than the minimum wage.

However, this rule does not apply to all situations. For example, the salary may be less than the minimum wage if we are talking about part-time workers, or about people whose salary depends on the amount of work done. In their regard, it is possible to assign a salary less than the minimum wage.

In addition, it is allowed to pay a salary less than the minimum wage in cases where the employee did not complete his work or did not fulfill the duties assigned to him by the employment contract.

Read the material on the topic: How to reduce employee salaries and not get invited to court

For which relationships is the minimum wage required?

Not every employer who employs other people is subject to minimum wage requirements. This government regulation guarantees a minimum limit for employees only when entering into an employment relationship. In civil cases, in which another form of contract is concluded, in particular, a contract for the provision of paid services, it is not necessary to comply with this requirement. In such relationships, payment is agreed upon by agreement; it may turn out to be lower than the minimum established by the power.

Question: The organization employs employees who receive additional payment for combining professions (positions). The established salaries for such workers are below the minimum wage, but the salary and additional payment for combining professions (positions) for a fully worked month are slightly higher than the minimum wage. Are payments made for combining professions (positions) included in wages in order to compare them with the minimum wage? View answer

Application of the minimum wage

The minimum wage applies to:

Regulation of wages. In accordance with the Labor Code of the Russian Federation, the salary of an employee of any organization for a fully worked month cannot be less than the minimum wage.
Determination of the minimum amount of benefits for temporary disability, pregnancy and childbirth.

In accordance with Art. 133 of the Labor Code, the minimum wage is established simultaneously throughout the entire territory of the Russian Federation by federal law. Subjects of the Russian Federation, in accordance with Article 133.1, can establish a minimum wage on their territory higher than that established by the Federal Law on the minimum wage.

Minimum wage or subsistence minimum

These two indicators should not be confused. The law states that the minimum wage should not be lower than the subsistence level. But in practice these values have not yet become equal. Labor Code of the Russian Federation in Art. 421 says that they will gradually be reduced to one total amount, this will happen in several stages. Until this moment comes, the employer should focus exclusively on the minimum wage, which, unfortunately, is still somewhat lower than the subsistence level.

Legal salaries are below the minimum wage

So, according to the law, it is impossible to assign payment below the established minimum. But there are several situations when the amount received in hand may be below this limit:

work under a civil law contract (the employer is considered the customer, and the employee is the contractor);
during the month, the employee did not work the calculated standard hours due to illness, administrative leave or other reasons (the monthly standard of working time is not developed);
in addition to the small salary, the employee receives additional mandatory payments: bonuses, bonuses, additional payments, etc., which in total amount to the required amount;
special work schedules or remuneration systems (hourly, piecework, part-time - day or week);
part-time work (payment depending on hours worked).

IMPORTANT! When working part-time or on special schedules, it is necessary to conclude an additional agreement to the employment contract, which, among other conditions, stipulates payment for part-time work. Without written consent, the employer does not have the right to establish part-time working hours or send people on indefinite unpaid leave.

And yet, can a salary or salary be less than the minimum wage?

Let's consider the options when an employee can quite legally receive less than the minimum wage or his salary is less (which is not the same thing):

The salary may be less than the regional figure if the organization has not joined the regional agreement in accordance with Art. 133.1 of the Labor Code of the Russian Federation (i.e., within 30 days after publication of the proposal, it sent objections).
An employee’s salary (fixed payment per month) can be less than the minimum wage only in 1 case: if the employee receives incentive payments, compensation and allowances in addition to it (confirmed by the decision of the RF Armed Forces dated August 30, 2013 No. 93-KGPR13-2). However, regional coefficients should not be included in these categories. They apply to wages, which must no longer be less than the minimum wage.
The employee did not comply with working time standards or labor standards (the condition for compliance is stipulated in Article 133 of the Labor Code of the Russian Federation). This case should not be confused with situations where reduced working hours are established by law (for example, for people with disabilities - Article 92 of the Labor Code of the Russian Federation).
An employee can receive a salary that is less than the minimum for the reason that 13% personal income tax is withheld from it. The eligibility requirement applies to the original earnings.

How to calculate and arrange an additional payment up to the minimum wage, read the ready-made solution ConsultantPlus. If you do not have access to the ConsultantPlus system, you can register for free for 2 days.

Thus, the employee's salary may be less than the minimum wage. But you need to remember that the minimum wage is changing upward, and there are also nuances in calculating wages, and avoid violating legal requirements, given the high level of responsibility applied to the employer in this case.

1. Differences between salary and minimum wage
2. Legal standards
3. When the regional minimum wage can be higher than the federal one
4. When paying wages less than the minimum wage is legal
5. If the salary is below the minimum wage
6. What to do if the salary is less than the minimum wage
7. Responsibility for violation of the minimum wage

Less than the minimum wage on hand

Sometimes it turns out that an employee receives less than the minimum wage, and this is legal. In this case, the salary includes the figure established by federal law. This may happen when:

the amount issued is reduced due to accrued personal income tax (the “dirty” salary corresponds to the minimum level, and a smaller amount is obtained by deducting 13%);
other mandatory deductions are deducted from the salary - the amount of the minimum wage issued can be reduced by insurance, membership dues to a trade union, etc.;
the employee has arrears in alimony payments (up to 70% of wages can be written off under a writ of execution).

Regional minimum wage (regional minimum wage)

Subjects of the Russian Federation, in accordance with Article 133.1 of the Labor Code of the Russian Federation, can establish a higher minimum wage on their territory. The minimum wage for a particular subject is determined taking into account socio-economic conditions and the cost of living in its territory.

The minimum wage in the region is established by a regional agreement of three parties (Part 6 of Article 133.1 of the Labor Code of the Russian Federation):

government of a constituent entity of the Russian Federation;
union associations;
associations of employers.

Once the agreement is concluded, all employers are invited to join it: the proposal to join the agreement is officially published in the media. If the employer does not submit a reasoned written refusal within 30 calendar days from the date of official publication of the proposal, it is considered that the employer has acceded to the agreement and is obliged to apply it.

Regional minimum wages are required to be applied by commercial organizations and entrepreneurs of a constituent entity of the Russian Federation, separate divisions located in the constituent entity, government agencies financed from the budgets of constituent entities of the Russian Federation, and municipal institutions. Federal government, budgetary and autonomous institutions are not required to apply the regional minimum wage.

In addition to the regional minimum wage, bonuses and coefficients established in the region are applied. For example, in the Altai Territory, the agreement for 2019-2021 established a minimum wage of 13,000 rubles. At the same time, the regional coefficient of 15% applies in the region. This means that employers in the Altai Territory do not have the right to set wages below 14,950 rubles (13,000 × 1.15).

What should an employee do if the minimum wage is low?

First of all, carefully read the employment contract before officially applying for a job. This document must indicate wages and work hours, as well as clarify the nuances regarding additional charges and deductions. If the specified amount is less than the minimum wage, you should not get a job with such an unscrupulous employer.
If your salary suddenly turns out to be less than usual, ask the payroll department about the reason for the decrease. If the reason is legitimate (see above), the employer is within his rights.
If the employer has reduced the payment illegally (unilaterally), it is worth applying for protection of your rights to the labor inspectorate in the territorial affiliation of the employer or to the prosecutor's office. To do this, you will need to write a written statement, to which you will need to add written confirmation of the infringement of your rights regarding wages:
an extract from a salary card account;
written explanation from the employer (if he provided it), etc.

The regulatory authorities will initiate an inspection of the employer and issue an order to eliminate the identified violations.

Going to court is the last resort for all those unfairly offended. For such claims, you do not need to pay a state fee. If the court decision is in favor of the employee, the employer will be obliged to comply with it. In practice, most often the employee in these cases is forced to resign.

IMPORTANT! It makes sense to first contact management directly. It is better to do this in writing or in front of witnesses. Most often, employers prefer to resolve the issue amicably with employees who know their rights.

In what cases can the salary be less?

List of circumstances when an employer legally has the right to pay an employee less than the established minimum wage:

Without personal income tax . It is the wages accrued to the employee that must correspond to the minimum wage. Therefore, it is acceptable if after paying income tax, the actual amount received in hand will be less.
When holding . A number of situations oblige the employer to make deductions from the income received by the employee on the basis of a writ of execution. There are no violations if, before deductions, the salary amount complied with the requirements of the law.
Without joining a regional agreement . Payment for labor may correspond to the minimum wage operating at the federal level, but be inferior to the regional one. The situation, although procedurally costly, is legal.
When working part-time . An employee spends no more than half of the working time spent at his main place of employment on part-time work. In case of part-time work, the salary is calculated in proportion to the time worked from the established minimum wage.
When working part-time (reduced working day or week) . The employer has the right to pay less than the minimum wage, but accruals must be made based on the time worked by the employee in proportion to the approved minimum wage.
With cumulative accounting of time worked . The employee’s actual working time is summed up and, if his performance is below the established monthly norm, the employer has the right to reduce his salary.
When an employee takes sick leave . During this period, the employee is not paid for his work. Sick leave is paid at the expense of the social insurance fund.
If the employee went on unpaid leave . Vacation is not paid by the employer, so a deviation from the minimum wage is acceptable.
When idle . If the employer is not at fault, he has the right to pay employees only 2/3 of the standard salary due to them. Therefore, the indicator may fall below the minimum payment.
While walking . Days on which an employee intentionally did not go to work without good reason are considered absenteeism. This period is not paid, which leads to a decrease in wages, including below the minimum wage.
When an employee works under the terms of a civil contract . Civil Procedure Code rules apply here, so the minimum wage may not be observed.

If, due to the nature of the work, wages must be paid taking into account the coefficient, understating payments is unacceptable. Allowances and compensations here are considered mandatory and are calculated separately from the minimum wage, and then added to it. For example, if working conditions are harmful to the employee’s health.

What does a reduction in the minimum wage mean for an employer?

Responsibility for underestimating the minimum wage implies punishment under Art. 5.27 Code of Administrative Offenses of the Russian Federation. Administrative liability provides for fines (1-5 thousand rubles for individual entrepreneurs, 30-50 thousand rubles for an organization, more for repeated violations) or even disqualification of officials. If the underpaid salary has not been paid for long, the employer may only receive a warning and an order to increase it.

Criminal liability may arise if it is discovered that the employer has embezzled legitimate money from employees. In this case, the fine may be up to 500 thousand rubles. for complete non-payment and up to 120 thousand rubles. – for partial non-payment of wages.

Illegally used alternative forms of employment, in addition to an employment contract, threaten the employer with a fine of up to 100 thousand rubles, and up to 200 in case of repeated violation.

What should an employer do if the salary is below the minimum wage?

If the employer wants to comply with the law, then when paying an employee below the minimum wage, he needs to equalize these figures. You can do this in different ways:

Recalculation. It is necessary to first analyze salary accruals for underpaid allowances. Sometimes the indicator changes due to length of service and other unaccounted for criteria, and the salary becomes higher than the previously established value.
Accrual of additional amount. This is done by signing an additional agreement to the employment contract and issuing a special order. If the minimum wage increased after the conclusion of such an agreement. The law does not have retroactive force - accruals are made for the minimum wage current at the time of signing.
Transfer of an employee to another schedule. With the consent of the employee, you can transfer him to part-time work or set him up to work part-time or a week. You can also conclude a civil contract with him instead of an employment contract. The consent of the parties must be secured by an additional agreement or a new contract.

Minimum wage size

Minimum wage (SMW) is the smallest fixed amount due by law to each employee, provided that he fulfills the monthly labor standard for a certain position (Article 133 of the Labor Code).

Regardless of the form of ownership of the employer, he is obliged to adhere to this indicator when calculating the employee’s remuneration.

The minimum wage is set annually by Federal Law No. 82 “On the minimum wage” dated June 19, 2000, and as of the beginning of 2021 it is equal to 12,792 rubles.