Can an employer not pay a monthly bonus? 100 rubles.

Home / Labor Law / Payment and Benefits / Bonuses

Back

Published: 02/15/2020

Reading time: 5 min

0

943

- Good afternoon. The employer regularly deprives us of bonuses for unimportant reasons: being 5 minutes late, talking in the workplace, etc. As a result, we have never received the income that was promised to us when we were hired. How legal is this?

– Unfortunately for some employees, the employer can independently select the grounds for depriving employees of bonuses. But there are certain grounds when the employer’s actions go beyond the legal framework. Let's look into it in detail.

• Legal grounds
• Is deprivation of bonuses a disciplinary sanction?
• Cases when an employee cannot be deprived of remuneration
• General algorithm for depriving a bonus
• Appealing the decision
• Summary

Legal grounds

What is depreciation? Deprivation of bonuses is a measure of material punishment that is applied to employees if they commit certain offenses. In other words, the violator is deprived of compensation in the form of a bonus. Depending on the amount, deprivation of the premium may be complete or partial.

A company employee must understand for what offenses he may lose his bonus.

Labor legislation does not address this issue, but the employer must clearly state the grounds for deprivation of bonuses in the Regulations on Bonuses. In Art. 135 of the Labor Code (LC) emphasizes that the employer is obliged to prescribe the rules for assigning and paying bonuses in the Regulations on Bonuses and familiarize all employees with them. The authority to approve the payment of bonuses and its appointment belongs to the management of the organization.

If the issue of salary calculation is regulated in sufficient detail in the Labor Code, then the employer has a certain freedom of action regarding bonus rules . The employer has the right to determine at his discretion:

1. Quantity, types and list of bonuses.
2. The frequency of awarding the bonus and the circle of employees who are entitled to count on it.
3. A list of indicators that may give rise to the right to a bonus.
4. A system for assessing the value of each type of bonus and the procedure for considering the results of the assessment.
5. The grounds that were the reason for depriving the employee of a bonus.

The employer also has the right not to create a separate document on the bonus procedure, but can specify all the necessary conditions in the employment contract. The conditions that the employer has provided for in its local documents should not worsen wages in relation to a particular employee. The employer should agree on the Regulations on bonuses with the trade union, and each employee familiarizes himself with it against signature.

Legal grounds for deprivation of a bonus may include:

1. Violation of work schedule (lateness, etc.).
2. Failure to complete the assigned task.
3. Bringing employees to disciplinary action for rudeness with clients, inconsistency in performance, etc. during the bonus period (for example, in the previous period).
4. The presence of a disciplinary offense during the bonus period (regardless of whether it resulted in a penalty or not).
5. Dismissal during the bonus period.
6. Incomplete bonus period.
7. The decision of the manager, enshrined in the order, for other reasons.

The bonus can be paid in several forms : as a bonus or as an incentive. Quite often, employers include bonuses as part of their salaries: this practice is especially common in budgetary institutions, when the salary of employees may be less than the minimum wage. Bringing the income level of such employees to an acceptable level occurs through various incentive payments in the form of bonuses, so the amount of earnings can constantly change.

It is important to understand that if, according to the employer’s local documents, the bonus is an integral part of the salary, it cannot be deprived. This approach is also indicated by existing judicial practice. The courts proceed from the fact that when a person fulfills his official duties under an employment contract, he must receive the salary in full.

But the employment contract, bonus regulations or collective agreement may indicate that the bonus depends on the employee’s achievements. For example, on the size of their increase in sales volume, the effectiveness of attracting new customers, the release of a certain amount of products, the achievement of set plans, etc. In this form, the bonus may legally be reduced or not issued.

An incentive bonus is assigned at the discretion of management if the current financial situation of the company allows it to be paid.

Payment of bonuses is an employer’s right, not an obligation.

Resolving a dispute over the collection of a bonus, the Moscow Regional Court indicated that, taking into account the provisions of the employer’s internal local acts, payment of a bonus is the right of the employer, and not its obligation . The decision to pay a bonus is made by the head of the company, provided that the necessary indicators are met both in the company as a whole and in the department where the employee works, as well as by the employee himself (Appeal ruling dated September 24, 2014 in case No. 33-21137 /2014).

The claim for the recovery of bonuses from the employer, according to the appeal ruling of the Vologda Regional Court, was rightfully rejected by the court of first instance. The Court of Appeal pointed out that, according to the current regulations on remuneration and bonuses in the organization, payment of bonuses is the right, and not the obligation, of the employer. In this document, in particular, it was stated that bonuses to employees are assigned if the employer has financial capabilities and are issued by order of the head of the organization on a monthly basis (Appeal determination dated September 20, 2013 N 33-4262/2013).

The court of the Chukotka Autonomous Okrug refused to satisfy the employee’s demands for payment of a bonus and pointed out that the provisions of the Unified Recommendations for the Establishment of Remuneration Systems for Employees of State and Municipal Institutions for 2014, establishing, in particular, the dependence of employee salaries on their qualifications and the complexity of the work performed , quantity and quality of labor expended; The employer's provision of equal pay for work of equal value when establishing the amount of incentive payments does not exclude the possibility of canceling the bonus or reducing it . In addition, the court noted that these recommendations also allow the employer, at his own discretion, to formulate a remuneration system and establish criteria for the appointment and payment of bonuses (Appeal ruling dated December 18, 2014 in case No. 33-206/2014, 2-66/2014) .

Sometimes payment of the bonus is still the responsibility of the employer. For example, if the company’s internal document establishes a guaranteed payment for Women’s Day – March 8th. In this case, the employer assumed the obligation to pay bonuses to the company's employees annually on a certain date, regardless of the company's financial performance and the performance of specific employees.

The employee's demands for payment of the bonus were satisfied by the Sverdlovsk Regional Court. At the same time, the court took into account the fact that the collected bonus was not a one-time bonus, but a permanent one (paid monthly) and, according to the provisions of the employment contract, was included in the wages along with the official salary. Based on these provisions, the court concluded that payment of the bonus is the responsibility of the employer and the employer must also prove that the employee does not achieve the criteria or indicators necessary for awarding the bonus (Appeal ruling dated November 20, 2014 in case No. 33-14971/2014).

Is deprivation of bonuses a disciplinary sanction?

Disciplinary punishment under labor legislation is provided for failure to perform and improper performance by an employee of labor functions through his fault.

An employer does not have the right to impose a disciplinary sanction against its employee in the form of deprivation of bonuses . This is due to the fact that this type of recovery is not listed in Part 1 of Art. 192 of the Labor Code. This legal norm contains reference only to the following types of collection:

• comment;
• rebuke;
• dismissal.

The employer himself chooses the appropriate form of punishment depending on the severity of the offense committed: for example, with regular and systematic violation of labor discipline, he faces dismissal.

As you can see, deprivation of bonuses is not included in this list. Federal laws and regulations on the discipline of certain categories of employees may provide for other types of punishment: for example, a representation of incomplete official compliance, a severe reprimand, etc.

At the same time, the absence of deprivation of bonuses in the list of disciplinary sanctions does not make deprivation of bonuses illegal. The basis for depreciation may be bringing the employee to disciplinary liability in the form of a reprimand, reprimand and dismissal in the time period in which the bonus is awarded.

It is necessary to note that imposing a disciplinary sanction is a right, not an obligation of the employer (based on Article 22 of the Labor Code). Based on the results of considering the severity of the offense, the commission may come to the conclusion that there is no need to punish the employee. In such a situation, if the basis for deprivation of bonuses is the presence of an outstanding penalty, then the employer does not have the right to deprive the employee of a bonus.

Also, the employer should formalize disciplinary action and deprivation of bonuses in the form of separate orders.

What is a prize anyway?

To answer this question logically, let's start by analyzing the components of salary.

An employee’s salary consists of three elements: salary - a firmly fixed payment for work performed, compensation payments - additional payments that compensate the employee for harm from work in advance, and bonuses - additional rewards for good performance of a job function (Article 129 of the Labor Code of the Russian Federation).

If everything is clear with the salary, then the purpose of the other two elements requires more detailed explanations.

Compensation payments

Thus, compensation payments (Article 129 of the Labor Code of the Russian Federation) include multidirectional allowances and additional payments for work in conditions of deviation from the norm and other property losses of the employee. These are, for example, additional payments for work in a northern climate, a weekly workload in excess of forty hours, the effect on the body of harmful chemicals in a factory, emotionally intense activity during human-human interaction, and the like.

These are also payments that reimburse the employee for his personal property expenses: the use of his own car, work conversations on his mobile phone. This also includes paying for additional health insurance, food, and fitness.

Allowances and surcharges

Allowances and additional payments can be set in a fixed monetary amount or calculated based on the salary according to a predetermined coefficient.

Thus, compensation payments are always aimed at reimbursing something. According to the law, additional payments of this kind established for an employee are mandatory and do not depend on the will of the employer.

Prize

The bonus is an element of salary in the form of additional remuneration to the employee from the employer for conscientious, effective work (Article 191 of the Labor Code of the Russian Federation).

These are regular (monthly, quarterly, annual) and one-time (tied to an achievement, holiday) incentives for completing a certain amount of work, improving technology, completing a project, attracting new clients, increasing the company’s total revenue, and also the absence of violations. In any case, the purpose of the bonus is to stimulate productive work without violations.

Bonuses, like allowances, can be agreed upon as a fixed amount or calculated as a percentage of salary or another key indicator, for example, the labor participation rate in the project.

So, the main feature of the bonus is its encouraging, stimulating nature. But, unlike compensation payments, incentives are not guaranteed by law and always remain at the discretion of the employer.

Cases when an employee cannot be deprived of remuneration

Separate reasons when deprivation of a bonus is illegal were discussed above, but, summarizing all of the above, the following reasons can be identified:

1. The bonus is part of the salary.
2. The basis for deprivation of the bonus is not provided for by internal documents.
3. The procedure for deprivation of bonuses was violated (for example, the employee was deprived of a bonus before disciplinary action, etc.).
4. There is no order to deprive an employee of a bonus if the execution of such a document is mandatory (for example, local documents indicate that deprivation of bonuses is issued by the decision of the manager or the employer needs to fix the amount of reduction in bonuses). When registering a depreciation through an order, one more important condition must be met: the employee must be familiarized with the order under his personal signature.

The employer may not issue any orders at all . For example, state in the Regulations that the bonus is awarded only based on the results of a positive financial result at the end of the quarter. In this case, in case of unprofitable operating activities, the bonus will simply not be awarded for the entire team and, in fact, there will be no reduction in bonuses.

An employer can develop a mandatory system of indicators that an employee must comply with in order to receive a bonus. If they are not followed, the employee will not receive a bonus.

If the reason for dismissal is listed in local documents, and the employee was previously familiarized with it, then the employer does not need to issue any additional orders.

Is it permissible for a pregnant woman to be deprived of her bonus? A pregnant woman can be deprived of her bonus for violating labor discipline. No concessions are provided for her: she must comply with labor discipline and job responsibilities.

The employer does not have the right to deprive an employee after the expiration of the penalty. Once the penalty is repaid, all the consequences it had are eliminated.

Grounds for recognizing the award as unjustified

The payment of a premium may be considered unjustified if:

• There are no documents containing instructions on: frequency;
• reasons for accrual;
• order of distribution;
• calculation of premiums.

For example, employment agreements with a note on the applicable procedure for calculating bonuses, local regulations, orders of the manager, decisions of the owners on bonuses, there are no necessary provisions in the charter or employment contract (job description) of the manager.

• The employer has internal regulations on bonuses, but they do not disclose any of the provisions that are essential for the emergence of the right to a bonus or the calculation of a bonus.
• Bonus periods on the same basis are duplicated. For example, there are quarterly bonuses for successful work and the same bonus at the end of the year.
• The employer's performance indicators, the fulfillment of which serves as the basis for the payment of bonuses, have not been met. In particular, an unreasonable adjustment to accounting data made in order to achieve the required indicators can be identified (for example, instead of an actual loss, a profit is artificially shown).
• The bonus at the expense of net profit is accrued when there is an actual accounting loss.
• The grounds for payment of the bonus specified in the bonus order do not correspond to those listed in the regulatory act on bonuses.
• The bonus was accrued to persons not named in the documents giving the right to accrue such a payment.
• The bonus order does not reflect the period for which the bonus is accrued.
• The frequency or procedure for distribution of bonuses established by the employer’s regulations has not been observed.
• The bonus order does not contain a list of employees who received a bonus, or the amount due to them is not distributed by name.
• The amounts of bonuses due to specific individuals are distorted in comparison with the calculation made according to the rules established by the employer.
• The limit on the amount within which the manager has the right to decide on paying a bonus to the employee has been exceeded.

The result of deeming a premium unjustified will be its exclusion from expenses that reduce the income tax base, and the employer will have to pay additionally this tax or the simplified tax system calculated from the object “income minus expenses.”

See also: “Premium Costs: Who’s at Risk.”

General algorithm for depriving a bonus

When depriving of bonuses on the basis of being subject to penalties in the current period, the following scheme will be legal: at the first stage, the employee is subject to disciplinary liability, and at the second, his bonus is deprived.

At the same time , in order to deprive an employee on the basis of bringing an employee to disciplinary action, the employer must follow the procedure established by law :

• obtaining explanations from the employee about the reasons for the misconduct (if the employee provided compelling reasons in his favor, then he can avoid penalties);
• convening a special commission to assess the misconduct;
• issuance of a collection order.

The employer chooses the form of punishment at his own discretion, but only one form of punishment is allowed for one offense (for example, for absenteeism you cannot make a remark and reprimand).

At the same time, for one offense the employer can impose a penalty and deprive the employee, and this will not become a violation. Deduction in this case should also be issued in the form of a separate order, where the basis for deprivation of the bonus will be the order of collection.

Bonuses for part-time workers

The Supreme Court of the Komi Republic satisfied the demands for the recovery of a bonus from an employee who performed the duties of a part-time social teacher. At the same time, the court indicated that the payment of the bonus should depend on the results of work, not only of the main employees, but also of part-time workers, since part-time work is independent work and for it the employee must receive a full salary, including a bonus. In addition, the court noted that the employer cannot arbitrarily exercise its right to assign bonuses to employees or not (Appeal ruling dated December 8, 2014 in case No. 33-5943/2014).

Appealing the decision

Since the employer’s right to deprive a bonus depends on how bonuses are drawn up in local documentation, an employee may not always complain about deprivation of a bonus. So, if bonuses are of an incentive nature, then complaints about deductions are meaningless . But if the bonus is part of the salary, then the employee is obliged to demand payment in full.

In order to challenge the employer’s decision to deprive a bonus, an employee can seek protection of his rights:

• to the labor inspectorate (State Labor Inspectorate - GIT);
• to the prosecutor's office;
• to court.

Based on an application to the state labor inspectorate, State Labor Inspectorate inspectors must conduct an inspection of the employing organization. If it is discovered that an employee has been deprived of funds due to him in the form of a bonus, inspectors will issue an order for the employer to pay the bonus, and will also oblige him to reimburse all untransferred funds, taking into account penalties and fines. The prosecutor's office has similar powers.

When going to court, an employee can demand not only the return of an illegally withheld bonus, but also compensation for moral damages and legal costs (compensation for damage cannot be recovered as a result of an appeal to the prosecutor’s office or State Tax Inspectorate). In order to prove the unauthorized actions of the administration, the employee must present arguments that clearly indicate a violation of labor laws . To apply to the court, an employee should prepare the following papers:

1. A copy of the employment contract.
2. Bonus rules, Regulations on bonuses and other documents adopted by the organization. If the employee does not have this document, then he has the right to request it from the employer, and he is obliged to provide information within 3 days after receiving the relevant request.
3. An order on deprivation of bonuses or a note signed by management.
4. An act of recording the violation that caused the imposition of a penalty (if any).

When preparing a statement of claim, the employee must write down:

1. Full details of the employing company, position and full name of the citizen.
2. Circumstances of the incident: when the employer deprived the employee of the bonus and for what reason.
3. On what basis does the employee believe that the deprivation of bonuses was illegal?
4. Requirements to the court: restore violated rights and return the amount of the premium, compensate for moral damage, etc.

A set of information along with the petition is sent to the court , and the applicant is notified of the hearing in written format. The employee has the right to submit an application to the court within a year after becoming familiar with the order to deprive him of bonuses. These cases are under the jurisdiction of magistrates.

The size of the bonus is determined by the employer

The Kaliningrad Regional Court confirmed the legality of the court's decision to reject claims for the payment of a bonus to an employee from among the civilian personnel of a military unit. When making its decision, the court was guided by the Order of the Ministry of Defense, which established the procedure for bonuses for civilian personnel. The court indicated that, according to this procedure, bonuses for employees are possible only by saving budget funds within the limits of budget obligations for wages. When determining the specific amount of the bonus, the amount of funds allocated for these purposes is taken into account, as well as the results of the employee’s performance of his official duties. Taking into account these provisions, the court came to the conclusion that bonuses to employees are not guaranteed payments , but are accrued and paid only if funds are available for this. In this case, no funds were allocated for bonuses to employees and no order was issued to all employees. In addition, the court indicated that the specific amount of the bonus is determined solely by the employer and depends in this situation on the employee’s performance (Appeal ruling dated July 17, 2013 in case No. 33-3184/2013).

The Novosibirsk Regional Court expressed a similar point of view when resolving a dispute over the recovery of a premium. The court indicated that when assigning bonuses to employees, the application of the principle of equal pay for work of equal value (that is, the size of the bonus for employees occupying the same positions should be equal) is erroneous. The employer himself has the right to determine the specific amount of the bonus for each employee based on the personal contribution of this employee to the implementation of assigned tasks. In this situation, the court does not have the right to replace the employer and determine the amount of the bonus for him (Decision of October 16, 2014 in case No. 33-8818/2014).

In some cases, the specific amount of the premium may be established by local regulations. For example, the company’s wage regulations may establish an annual bonus payment for the professional holiday of the organization’s employees in the amount of 1,000 rubles. In this situation, the employer cannot reduce the amount of payment at its discretion.

Note! The Supreme Court of the Russian Federation in 2013 indicated that labor legislation allows the establishment of salaries, as components of employee salaries, in an amount less than the minimum wage, provided that their salary is not less than the minimum wage. At the same time, the regional coefficient and the percentage bonus for continuous work experience must be added to the salary in excess of the established minimum wage (Definition of the Supreme Court of the Russian Federation of May 17, 2013 N 73-KG13-1).