Liability agreements
Type
Name
| Liability Agreement |
Instructions for preparing a liability agreement
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.
General limitations on full liability
Of course, the employer does not recover damages absolutely freely. There are still restrictions, this is stated in the Review of Court Practice dated December 5, 2018.
Real damage
The employee only pays for actual damage to the employer - Art. 238 Labor Code of the Russian Federation. This is a lack of money, spoilage of food, theft, payments for customer claims or fines from government agencies. Lost profits cannot be recovered from an employee.
The courier lost tablets worth 100,000 rubles, which he was delivering to a client. The employer had to order new ones and cancel the planned purchase for another 500,000 rubles. The disappearance of tablets is real damage, and the employee is responsible for it. A failed order and subsequent sales are lost profits that the employee should not compensate.
Reduction of the amount by the court
The court has the right to reduce the employee's debt. It takes into account what the employee's salary is and whether anyone else was at fault for the damage. An exception is if a person committed a crime: he stole money or organized the sale of goods to a third party. Then the amount cannot be reduced according to 250 Labor Code of the Russian Federation.
The court does not give a discount to everyone. Whether it will happen depends on the skill of the worker during the process.
Employee's fault
You cannot take money from an employee if he is not guilty - Art. 233 Labor Code of the Russian Federation. The employee is not responsible for force majeure events such as flood, fire and robbery. He doesn't keep track of goods during someone else's shift or at night. All similar circumstances are listed in Art. 239 Labor Code of the Russian Federation.
Submit reports without accounting knowledge
Elba is suitable for individual entrepreneurs and LLCs with employees. The service will prepare all the necessary reporting, calculate salaries, taxes and contributions, and generate payments.
Try 30 days free Gift for new entrepreneurs
With whom can you enter into a liability agreement?
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 regarding whether a particular employee belongs to the category of financially responsible, the Ministry of Labor of Russia, by Decree No. 85 dated December 31, 2002, approved the List of positions and work performed by employees with whom it is possible to conclude an agreement on financial responsibility .
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.
Financial liability of an employee at an individual entrepreneur (sample agreement)
An individual entrepreneur is recommended to conduct unannounced checks of the cash register if he has hired employees who are responsible for receiving and spending funds and preparing primary cash register documents. Naturally, it is advisable for an individual entrepreneur to enter into an agreement on full financial responsibility with such employees.
Please note that the agreement on financial liability between the employee and the individual entrepreneur is concluded within the framework of labor relations. Therefore, an employment contract must be concluded. The presence of an agreement on liability will allow an individual entrepreneur to demand compensation in full for damage caused to him through the fault of a cashier or other specialist who, in accordance with his job description, is assigned these responsibilities.
Sample agreement on the financial responsibility of an employee for an individual entrepreneur
Form of a liability agreement
An agreement on liability is concluded in writing, and it must be an agreement, and not some kind of 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 dated March 17, 2004 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 dated December 31, 2002 No. 85, in addition to the List of works and positions, includes samples of standard agreements on financial liability (individual and collective). Standard samples can be supplemented or changed, but they 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.
Decor
An employee should know that work duties are related to financial responsibility at the stage of concluding an employment agreement. In a situation where financial responsibility must be assigned to an already employed person, the conclusion of such an agreement will constitute a change in the terms of the agreement (Article 74 of the Labor Code of the Russian Federation), of which the employer is obliged to notify the employee no later than 2 months before such a change, and in case of refusal, offer him in writing another vacancy. In the absence of a vacancy or refusal of the one offered, such an agreement with the employee is terminated (clause 7, part 1, article 77 of the Labor Code of the Russian Federation).
Legal relations regarding the material liability of the parties to an employment contract are, as a rule, established in writing in the form of an agreement (Article 244 of the Labor Code of the Russian Federation) according to the standard forms contained in Resolution of the Ministry of Labor No. 85.
The agreement on full individual responsibility is drawn up in two copies: one remains with the employer, the other is transferred to the employee.
For collective (team) responsibility, one agreement is concluded with all members of the team (team) (Part 2 of Article 245 of the Labor Code of the Russian Federation), which they must sign.
Is the employee always to blame for the damage?
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 the resolution of the Plenum of the Armed Forces of the Russian Federation dated November 16, 2006 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, accepted measures to prevent damage, and the object of risk was material assets, and not the life and health of people.
Cases of document execution
After the candidate has read and signed the main employment contract.
It must directly stipulate the possibility of punishment , as well as the obligation of the employee to sign an agreement on full financial responsibility.
The standard form of the document indicates information about the parties, the official name of the company, the time and place of signing (a sample form is presented below).
For example, LLC “Company Name” represented by the General Director First Name Last Name Patronymic, acting on the basis of the Charter, and passport information of the candidate for the position. It also contains:
Subject of the agreement
This describes the obligations for the company's values entrusted on the basis of a one-time document. The applicant for the position will be fully responsible for them .
General provisions
It describes why and on the basis of what documents such a procedure is established in the company, who retains control over execution, what exactly is entrusted to the responsibility of this employee, and what paper confirms this.
Employee rights
The applicant undertakes to take care of the corporate property entrusted to him, monitor its condition, notify the director in advance if there is a threat of damage or loss of valuables (or circumstances that could lead to this in one way or another), keep reports and take part in inventories.
Also, the employee can join in any inspection carried out in relation to the property entrusted to him , participate in it and, if guilt is undeniable, then compensate the amount of damage caused by him.
It must be stipulated that the latter cannot refer to lost benefits!
Employer Responsibilities
The director, in turn, is obliged, first of all, to create the conditions himself so that the duties assigned to employees can be fulfilled . He must also familiarize the person accepted with the local documentation of the company under a personal signature.
Procedure for maintaining records and reporting
The employer must describe what reports and at what time the employee must provide him
Compensation for damage
A citizen who accepts these conditions of the employer will be obliged to compensate for everything that the company will lose as a result of his improper attitude to his duties.
In this case , the established procedure must be followed in terms of documentation - an order is issued, an inspection is carried out, a violation is identified, an explanation of what happened is sought from the citizen, and only then can we talk about compensation.
All circumstances when it will be possible to demand full compensation for damage from a given employee must be indicated in detail.
Final provisions
It is indicated how many copies the document has, as well as the legal address of each signatory.
Next is the date and signatures.
