How to deduct the amount of material damage from an employee’s salary

How to deduct from salary by employer's decision

Deductions from an employee's salary occur for various reasons and are regulated by labor legislation. There are two types of financial liability for an employee : limited and full . The main detail when withholding is the moment of taxation of income. The first step is to calculate and withhold personal income tax and only later other penalties.

The employer has the right to legally deduct from wages:

• Overpayment of advance received towards salary;
• Unspent funds for company needs or business trips;
• Overpayment due to an error in accounting calculations;
• Other amounts, Part 2, Art. 137 Labor Code of the Russian Federation.

Important! An employee in accordance with Art. 136 of the Labor Code of the Russian Federation must be notified in writing of all cases of deduction from wages.

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Labor disputes » On the right of an employer to deduct from the wages of employees guilty of causing damage in order to recover from them the amount of damage caused without a court decision

Print

The organization suffered material damage, which was confirmed by the inspection and explanatory notes collected from the guilty employees. Based on the results of the inspection, an order was issued to recover material damage from the perpetrators in the amount of average monthly earnings (monthly no more than 20% of the monthly salary). In the order, each employee wrote: “I am familiar with it, but I do not agree.”

Question:

In this case, does the organization have the right to withhold material damage without a court decision?

Lawyer's answer

In accordance with Art. 248 of the Labor Code of the Russian Federation, 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.

Art. 248, “Labor Code of the Russian Federation” dated December 30, 2001 N 197-FZ (as amended on July 3, 2016) {ConsultantPlus}

If compensation for damage is carried out by deduction from the employee’s salary, the total amount of all deductions for each salary payment cannot exceed 20% (Article 138 of the Labor Code of the Russian Federation). It is calculated from the amount remaining after taxes are withheld (Letter of the Ministry of Health and Social Development of Russia dated November 16, 2011 N 22-2-4852).

Article: Collecting damages from an employee (Mokrousov O.) (“New Accounting”, 2021, N {ConsultantPlus}

The procedure for holding an employee accountable

Determining the amount of damage caused by the employee

In accordance with Part 1 of Art. 246 of the Labor Code of the Russian Federation, the amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, which are calculated based on 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 . If it is impossible to determine the day the damage was caused, then the employer has the right to calculate the amount of damage as of the day it was discovered (paragraph 2, paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 16, 2006 N 52).

A special procedure for determining the amount of damage may be established by federal law in the following cases (Part 2 of Article 246 of the Labor Code of the Russian Federation):

- damage was caused to the employer by theft, intentional damage, shortage or loss of certain types of property and other valuables;

— the actual amount of damage caused exceeds its nominal amount.

For example, according to paragraph 6 of Art. 59 of the Federal Law of 01/08/1998 N 3-FZ “On Narcotic Drugs and Psychotropic Substances”, the employee bears financial liability in the amount of 100 times the amount of direct actual damage caused to the employer - a legal entity as a result of the theft or shortage of narcotic drugs, psychotropic substances or their precursors.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Conducting an inspection to determine the amount of damage caused by the employee

Before making a decision on compensation for damage by the employee, the employer must conduct an inspection and establish the amount of damage, as well as the reasons for its occurrence (Part 1 of Article 247 of the Labor Code of the Russian Federation).

The amount of damage caused to the employer's property, in particular, can be established during the inventory by identifying discrepancies between the actual availability of property and the data in the accounting registers. This conclusion follows from Part 2 of Art. 11 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ).

The list of objects subject to inventory, as well as the cases, timing and procedure for its implementation, is provided by the employer independently, with the exception of cases of mandatory inventory (Part 3 of Article 11 of Law No. 402-FZ).

Cases when an inventory is mandatory are determined in accordance with the legislation of the Russian Federation, as well as federal and industry standards (Part 3 of Article 11 of Law No. 402-FZ). Until such standards are approved, the rules for maintaining accounting records and preparing financial statements approved before January 1, 2013 (Part 1, Article 30 of Law No. 402-FZ) are applied.

Currently, cases of conducting an inventory are mandatory established in clause 27 of the Regulations on accounting and financial reporting in the Russian Federation (approved by Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n), clause 22 of the Guidelines for accounting of inventories (approved by Order of the Ministry of Finance of Russia dated December 28, 2001 N 119n). When carrying out such an inventory, the procedure provided for by Order of the Ministry of Finance of Russia dated June 13, 1995 N 49 is applied.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Conducting an internal investigation to determine the causes of damage

In addition to taking inventory, the employer needs to conduct an internal investigation to determine the causes of the damage. For this purpose, the employer has the right to create a commission, including relevant specialists (Part 1 of Article 247 of the Labor Code of the Russian Federation). It is recommended that such a commission include a legal adviser, an economist, a human resources officer and a security officer. The commission is created by an order drawn up in any form and signed by the head of the organization. Members of the commission must be familiar with this document upon signature.

The commission must determine the following:

— absence of circumstances excluding the employee’s financial liability;

— illegality of the behavior of the employee who caused damage to the employer’s property;

— the employee’s guilt in causing the damage;

— a causal relationship between the employee’s behavior and the damage that occurred;

— the presence of direct actual damage to the employer.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Requesting a written explanation from the employee who caused the damage

In accordance with Part 2 of Art. 247 of the Labor Code of the Russian Federation, the employer is obliged to request a written explanation from the employee to establish the cause of the damage. This explanation can be requested by providing the employee with notice. In case of refusal to affix a signature confirming familiarization with the notice, it must be read aloud to the employee in the presence of witnesses.

If the employee agrees to voluntarily provide the specified explanation, then there is no need to request it in writing.

The employee’s refusal or evasion to give explanations is documented in an act (Part 2 of Article 247 of the Labor Code of the Russian Federation). This document must be presented to the employee against signature. If the employee refuses to sign, an appropriate note must be made on the document.

The Labor Code of the Russian Federation does not establish a period during which a written explanation must be requested from the employee. Therefore, the employer can request it, for example, from the moment the damage is discovered, as well as during or after an internal investigation.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Conclusion of the commission based on the results of an internal investigation into the causes of damage

Based on the results of the internal investigation, an act is drawn up, which is signed by all members of the commission. The act reflects the facts established by the commission, in particular:

- the employee’s fault;

— illegality of the actions committed;

— a cause-and-effect relationship between the employee’s actions and the damage incurred by the employer.

Inventory materials, written explanations from the employee and other documents may also be attached to the act.

It should be taken into account that the employee and (or) his representative have the right to familiarize himself with all materials of the inspection and appeal them in case of disagreement with its results (Part 3 of Article 247 of the Labor Code of the Russian Federation).

Guide to HR issues. Material liability of the employee {ConsultantPlus}

The procedure for compensation by an employee for damage caused to the employer

In accordance with Part 1 of Art. 248 of the Labor Code of the Russian Federation, 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. According to Part 4 of this article, an employee can voluntarily compensate for damage in whole or in part. This means that the employee pays the employer from personal funds the amount of damage caused in full or a certain part thereof. The employer withholds the remaining amount from the employee’s salary in the amount of 20 percent until final compensation for damage. The employee and employer can also agree on compensation for damages in installments.

In order for the employer to have evidence of an agreement with the employee to compensate for the damage caused, it is necessary to draw up an agreement. It should indicate the amount of damage and the timing of its compensation.

An employee can also, with the consent of the employer, transfer to him property equivalent to the damaged one, or repair the property at his own expense (Part 5 of Article 248 of the Labor Code of the Russian Federation). The Labor Code of the Russian Federation does not provide for the employer’s obligation to record such consent in writing, however, in order for the employer to have evidence of the agreement reached, it is recommended to draw up an appropriate agreement.

Guide to HR issues. Material liability of the employee {ConsultantPlus}

How to issue an order to hold an employee financially liable

An order (order) to recover the amount of damage caused from an employee is drawn up in any form and signed by the head of the organization. Such a document must be issued within 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). The one-month period should be calculated from the moment of completion of measures to determine the amount of harm caused and the causes of its occurrence. If the one-month period for issuing the order is not observed, the employer can recover damages caused by the employee only in court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

The employee must be familiar with the order to recover the damage caused. In addition, he must agree with its contents. To do this, the document should include a column “I have read the order and agree with the contents,” in which the employee must sign.

Important! If an employee does not agree to voluntarily compensate for the damage caused, the amount of which exceeds his average monthly earnings, the employer has the right to demand compensation for damage only through the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

Guide to HR issues. Material liability of the employee {ConsultantPlus}

Based on the above, the recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly salary, is carried out by order of the employer; the total amount of all deductions for each salary payment cannot exceed 20% (Article 138 of the Labor Code of the Russian Federation).

Selection of documents:

Situation: When is an employee financially responsible to the employer? (“Electronic magazine “ABC of Law”, 2017) {ConsultantPlus}

Form: Order to hold an employee financially liable (filling sample) (Prepared by ConsultantPlus specialists, 2017) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, April 2017.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE ().

The employee voluntarily pays the damages

The case when the financially responsible person agrees with the amount of damage to the company and is ready to compensate for it is quite simple. If a loss/shortage is identified during the inventory, the employee must familiarize himself with the report and the results of the audit.

The employer’s obligation is to obtain written consent, where the employee indicates that he is ready to voluntarily reimburse the entire amount of the loss or part of it (depending on the agreement with the company’s management) and indicate the source of payments.

If the amount of damage is greater than the average salary, a payment schedule should be developed, as well as a method of compensation in case the employee decides to quit. Otherwise, it will be possible to collect the debt from the citizen only through the court. Money to pay off the damage is deposited into the cash desk or into the company's bank account.

Important! Please pay attention to the fact that no more than 20% can be withheld from the salary of a financially responsible employee in all cases provided for by labor law, in other situations up to a maximum of 50%.

Find out more about the rules for deducting from your salary by following the link.

Financial liability: consequences of shortage

On a general basis, limited financial liability in relation to an employee is ensured by the average monthly income. In a separate case, the employee is assigned full financial responsibility in the following cases:

• Provided by law;
• Causing damage as part of work duties;
• Harm in a state of various types of intoxication (alcohol, drugs);
• If confidential information was disclosed;
• Causing intentional harm;
• If provided for by job responsibilities (manager, cashier, chief accountant).

A complete list of specialties that require drawing up and signing an agreement on full financial liability with an employee is contained in Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85. This type of agreement can be concluded with an employee who is over 18 years old.

Compensation for damage: reflection in accounting

It is generally established that the employer must prove the existence of loss/damage. The following activities will help identify deficiencies:

• Determine the amount of damage for the enterprise as a whole (in case of damage, negligence, theft, negligence);
• Identify the details of the incident, as well as the guilty employees.

The full amount of damage in monetary terms is established for the assessment of inventory items and other property at market prices at the time of the event, but not less than the actual cost in accounting.

The collection of evidence of the incident is carried out by an appointed inventory commission. An act is drawn up, and memos with explanations are taken from each employee. Deductions are carried out by order issued by management no later than one month from the date of discovery of the damage.

Calculations of this kind are accumulated on account 94, which is intended to summarize information about the amounts of shortages and other losses from damage to inventory items. Accounting entries in the case where the culprit is identified and deductions occur under limited liability :

Dt 73 Kt 94 - the amount of average monthly earnings

Dt 70 Kt 73 – the amount of the loss is written off from the salary.

Dt 50/51 Kt 73 – for the amount of damage (the employee contributes the funds voluntarily).

If the employee’s guilt could not be proven or the court proceedings did not satisfy the employer’s claim, then the following entry must be made in the accounting records:

Dt 91 Kt 94 - for the amount of damage that was included in other expenses.

Deadline for collecting damages from an employee

The law sets a deadline for holding an employee accountable for harm caused. After this period, it will be extremely difficult to force anything from the employee.

Labor legislation defines a one-year period from the moment the existence of harm is discovered. Often the starting point is the inventory results.

The missed deadline can be restored by submitting an appropriate application to the judicial authorities describing the valid reasons for the late response to the damage on the part of the employer.

General example of registration for compensation of damage

Example : During the inventory process, a shortage of inventory items of 15,000 rubles was discovered. After collecting written statements and conducting interviews, the guilty employee was identified. The order established that damages are recovered from the salary of the financially responsible employee. His salary is 35,000 rubles per month.

The procedure for compensation by the employer for damage caused by the employee

In every company, a situation may arise when it is necessary to recover material damage from an employee. What points should you pay close attention to?

1. Creation of a commission to carry out an official investigation . It must include an accountant, as well as an employee capable of assessing the damage caused in the event of a breakdown of technical devices or equipment. If there is no such specialist in the company, there is an opportunity to attract an outside expert.
2. The commission requests an explanation from the guilty employee in writing with delivery of the document against signature. This step is carried out in the same way as in the disciplinary investigation process.
3. The commission examines all the documentation and draws up a final conclusion about the employee’s guilt, there is a chance to recover damages from him. Moreover, recovery of material damage caused by an employee may not always be carried out. In the process of this action, the commission must determine as accurately as possible what exactly was damaged or lost, and also determine the amount of costs in monetary terms.
4. Determination of the amount of damage caused . This is usually done through an official document from the suspect's boss. It is extremely important to fill out everything correctly here. Then there will be no problems in the future. Sometimes recovery of damage caused by an employee involves at this stage a request from the commission for an expert opinion and its inclusion in the results of the investigation.
5. Issuance of an order regarding the withholding of funds from the perpetrator in accordance with the rendered conclusion. If it is impossible to bear such responsibility, no order is drawn up.
6. Transferring the completed order to the accounting service , which will withdraw the established funds from the employee’s salary.
7. Judicial proceedings in the event of a dispute between the parties . In some cases, established by law, the company is forced to file a claim to recover damages from the employee in court. Such problematic and controversial situations occur in a variety of enterprises and require the most detailed consideration in order to fully understand the essence of the issue. If you need to carry out the procedure for recovering damages from an employee in court, be sure to consult with our experienced labor lawyers who will help you. Don't hesitate to ask any questions you may have. Choose professionals. Then the problem will be solved on time.

When it is impossible to withhold damage from an employee’s salary

It should be noted that there are circumstances when the employee is not to blame and financial liability does not arise. This:

• Failure by the employer to provide conditions for secure storage of valuables;
• Force majeure (force majeure circumstances);
• Reasonable business risk;
• Other situations mentioned in Article 239 of the Labor Code of the Russian Federation.

In conclusion, it remains to add that in order to accurately process a loss compensation operation, the accountant will need to comply with the rules:

• Documents confirm the existence of shortages or material damage;
• Establish full or limited liability of the employee;
• Comply with the 20% limit on salary deductions;
• Carry out actions to ensure that employees are able to accurately perform their job functions.

Rate the quality of the article. Your opinion is important to us: