The employer transferred the extra money. An employee must not return wages accrued by mistake.

Situation:The company mistakenly paid an employee more wages than he was entitled to. There was a computer failure that caused some formulas in the program to change. As a result, the employee was accrued and paid more money.

It will be possible to recover money from an employee in any case.

When a salary is paid more than expected, a number of measures must be taken. The company finds itself in a situation where it can safely demand that the employee return the excess amount paid to the company. It is to demand, and not to ask, since here the employee is simply obliged to compensate for the overpayment that has arisen. Let us explain in detail.

IN in this case the employee received more than he should have due to an error in the computer program. Nevertheless we're talking about specifically about a counting error. And this is exactly one of those situations when overpaid wages can be recovered from an employee, including by force.

By the way, full list cases in which you can demand money back from an employee are named in Article 137 of the Labor Code of the Russian Federation. For example, if the error were caused by illegal actions the employee himself. Let’s say he submitted false documents to the accounting department for standard tax deductions and this circumstance was subsequently confirmed in court.

But if the organization (or program) had not made a mistake in the calculations, but, say, misinterpreted the legislation, the requirements would have been unlawful. Here the employee can reimburse the overpayment only if he wants to (Clause 3 of Article 1109 Civil Code RF). And even if you go to court, you are unlikely to win the dispute. A similar situation will occur if a company mistakenly pays an employee a salary twice, let’s say on a card and through a cash register (read the comment below for more details on this).

Notify management and the employee

If you discover a counting error, do not rush to immediately withhold the excess from the employee’s salary. First, report the miscalculation by writing a report. And then notify the employee himself in writing. We have provided a sample notification letter below.

Inform the person of the amount of the surplus (1) and state the reason why he received more money (2). We advise you to emphasize in the letter that the whole point is a counting error. By the way, for greater persuasiveness, you can attach to the notification an act of a commission created from employees of the company, which confirmed that the overpayment occurred precisely because of an error in the calculations.

Next, invite the employee to return the amount voluntarily (for example, to the cash register) to specific date(3). And immediately inform him: if he himself does not want or is unable to pay the required amount, the accounting department will withhold it from wages employee (4).

Be sure to familiarize the employee with the letter against signature (5). This way you will have confirmation in your hands that everything necessary procedures the company complied before forcibly collecting money from a person. This is in case the case goes to court.

Excess can be withheld from salary

The employee never returned the excess amount on time? Now you can, together with your manager, draw up an order to withhold the overpayment. But remember what to subtract from monthly salary You are not entitled to more than 20 percent of an employee (Article 138 of the Labor Code of the Russian Federation).

The order must have the employee’s signature stating that he does not object to the basis and amount of deductions. Officials from Rostrud warned about this in a letter dated August 9, 2007 No. 3044-6-0.

If the employee is categorically against the deductions, the overpayment can only be returned through the courts. And by the way, don’t delay with the order. It is important that the date set for the return is incorrect transferred amount, less than a month has passed. Otherwise, again, you cannot do without a judge’s decision.

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Hello, Alexey! I am sending you clarifications from PS Consultant Plus.

"Electronic journal “ABC of Law”, 02/16/2016WHAT TO DO IF THERE IS A LONG DELAY IN PAYMENT OF SALARY?

Salaries must be paid at least every half month on the days established for this (Part 6 of Article 136 of the Labor Code of the Russian Federation). Non-payment of wages in deadline not allowed and is a violation labor legislation.
Universal algorithm, which can be applied in case of a long delay in payment of wages, no. Therefore, if agreement on the timing of debt repayment is not reached, you can use one of the methods presented below, or apply a set of measures.

Appeal to the employer demanding payment of compensation for delayed wages
For violation of the established deadline for payment of wages, the employer must pay monetary compensation (Article 236 of the Labor Code of the Russian Federation). Its size must be no less than 1/300 of the current refinancing rate of the Bank of Russia for each day of delay, if a collective, labor agreement or local normative act Larger size not available. Compensation is calculated for the entire period of delayed wages.
The first day of delay is the day following the due date for payment of wages. The last day is the date of actual payment of wages. Compensation is calculated on amounts due to the employee after personal income tax withholding. The obligation to pay the specified monetary compensation arises regardless of the employer’s fault.

Example. Compensation calculation
Employees are paid:
- 21st day of the current month (40% of the total amount);
- 6th day of the month following the billing month (60% of the total amount).
Salaries for August and September 2015 were paid on October 5, 2015.
Let’s say an employee’s salary without personal income tax accounting- 100,000 rub.
Then the amount and number of days of delay in salary payment will be:
- 40,000 rub. for the first half of August - for 45 days (from 08/22/2015 to 10/05/2015);
- 60,000 rub. for the second half of August - for 29 days (from 09/07/2015 to 10/05/2015);
- 40,000 rub. for the first half of September - for 14 days (from 09/22/2015 to 10/05/2015).
The refinancing rate based on which the calculation is made is 8.25% (Instruction of the Bank of Russia dated September 13, 2012 N 2873-U).
The amount of compensation will be:
- for the first half of August 495 rubles. 00 kop. (40,000 x 0.0825 / 300 x 45);
- for the second half of August 478 rubles. 50 kopecks (60,000 x 0.0825 / 300 x 29);
- for the first half of September 154 rubles. 00 kop. (40,000 x 0.0825 / 300 x 14).
The final amount of compensation will be:
495 rub. 00 kop. + 478 rub. 50 kopecks + 154 rub. 00 kop. = 1127 rub. 50 kopecks

Suspension of work

If the payment of wages is delayed for more than 15 days, you have the right to suspend work for the entire period until the delayed amount is paid (Article 142 of the Labor Code of the Russian Federation). The employer must be notified of the suspension of work in writing, having received evidence of the notification. For example, you can ask the employer to sign the second copy of the application for suspension of work. If the employer refuses to do this, the application can be sent by mail by registered mail with notification of delivery. In this case, work can be suspended from the moment the employer receives the application. The time of suspension of work must be paid based on average earnings (Part 4 of Article 142 of the Labor Code of the Russian Federation; Federal Law of December 30, 2015 N 434-FZ; Question 4 of the Review of Legislation and judicial practice RF Armed Forces, approved. Resolution of the Presidium of the Supreme Court of the Russian Federation dated March 10, 2010).
During the period of suspension of work, you have the right to be absent from the workplace. In this case, you will need to go to work no later than the next working day after receiving written notice from the employer about their readiness to pay delayed wages on the day they return to work. In addition, interest must be paid for late payment of wages.

Pay attention!

Some categories of workers do not have the right to suspend work. These include:
- employees and workers of bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the country's defense and state security, emergency rescue, search and rescue, fire fighting work, works to prevent or eliminate natural disasters And emergency situations, law enforcement agencies;
- civil servants;
- employees of organizations directly serving especially dangerous species production, equipment;
- workers performing work directly related to the livelihoods of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency stations medical care). These include, for example, operators of a boiler house that provides the population with heat energy (Definition Constitutional Court RF dated March 2, 2006 N 60-O).
It is also not allowed to suspend work during periods of military or state of emergency(Part 2 of Article 142 of the Labor Code of the Russian Federation).

Contacting the commission for labor disputes(KTS)

You have the right to contact your employer and employee representative body with a proposal for creation of CTS, which must be created within 10 days from an equal number of representatives of the employer and employees. An employee can file a complaint about a violation of rights with the CTS at three month period from the day he learned about the non-payment of wages on time. The employee's application is subject to mandatory registration in the CCC, and the labor dispute must be considered within 10 calendar days from the date of application. By general rule the dispute is considered in the presence of the employee. If monetary demands the employee will be considered justified, they are satisfied in in full. Within three days from the date the CCC makes a decision on the merits of an individual labor dispute, copies of it must be sent to the employee and the employer. If CCC decision has not been appealed, for which a 10-day period has been established, then it is subject to execution within three days after the expiration given period. If the decision of the CCC has not been executed, then the employee may be issued a certificate, which is executive document. Within three months from the date of issue of the certificate, it must be presented to the service bailiffs For enforcement(Article 382, ​​Parts 1, 2, Article 384, Articles 385, 386, Parts 2, 3, Article 387, Part 3, Article 388, Parts 1, 2, 3, Article 389 of the Labor Code of the Russian Federation ).

Contacting the labor inspectorate

You can send a complaint to state inspection labor of your subject of the Russian Federation. The application must indicate the body to which it is sent (State Labor Inspectorate), your last name, first name, patronymic, postal address for an answer. It is recommended that you also include your phone number. Further in the application you must provide the full name of the organization indicating the form of ownership, address of actual location, full name. manager and administration contact details, if known to you. The appeal must briefly and clearly state the essence of the complaint, facts and circumstances. Indicate the period for which wages were not paid, total amount debts and other circumstances relevant to the case. If you do not want the source of the complaint to be disclosed during the inspection, in your application express your wish not to disclose information about the applicant. In this case, inspectors will be obliged not to disclose the source of the complaint to the employer (Article 358 of the Labor Code of the Russian Federation). At the end of the appeal you must put personal signature and date.
It is recommended to attach a copy to your application employment contract, as well as evidence of non-payment of wages, if available. The appeal can be submitted in person or sent by registered mail with acknowledgment of receipt. In addition, the appeal can be submitted via the Internet in the form electronic document. As a general rule, an appeal is considered within 30 days from the date of its receipt, but in exceptional cases The period for consideration of the application may be extended up to 30 days.
If during the inspection the regulatory authorities establish that wages are being delayed, the employer will be issued an order to pay you wages, as well as interest for the delay. The inspectorate monitors the implementation of the order. In addition, they will consider the issue of bringing the perpetrators to justice (Article 360 ​​of the Labor Code of the Russian Federation; Article 5.27 of the Code of Administrative Offenses of the Russian Federation; Article 145.1 of the Criminal Code of the Russian Federation; paragraphs 86 - 92 Administrative regulations, approved Order of the Ministry of Labor of Russia dated October 30, 2012 N 354n).

Going to court

With a statement of claim or an application for court order should contact district court or to the magistrate at the location of the employer (Articles 23, 28 of the Code of Civil Procedure of the Russian Federation). If you do not have experience writing applications, you may need professional help.
Serving statement of claim, you need to have evidence confirming the fact of work in the organization, as well as, if possible, the fact of non-payment of wages. This could be an employment contract, an order for employment, an entry in work book, certificates from the employer, payslips, bank statements, testimony etc. (Articles 131 - 132 of the Code of Civil Procedure of the Russian Federation). If the court rules in your favor, then writ of execution Three months' salary payment can be issued on the day the decision is made. Regarding the rest unpaid wages the writ of execution will be issued after the decision comes into force legal force(Article 211, 428 Code of Civil Procedure).
In addition to lost wages and monetary compensation for its delay, you have the right to demand compensation moral damage. As a rule, the amount of moral damage does not exceed five thousand rubles (clause 63 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
If from the moment the decision is made to the actual payment of the delayed salary, long period, then you can apply to the court that examined the case with an application for indexation of the collected amounts (Article 208 of the Code of Civil Procedure of the Russian Federation).
If wages have been accrued but not paid, you can apply to the magistrate’s court to issue a court order, which will be a writ of execution. By way of order, you can recover both the amount of the debt and the accrued interest for late payment. The court order must be issued within five days from the date of application to the court. In this case, the parties are not summoned to court, trial is not carried out. After the court issues a court order, a copy of it is sent to the employer. He may submit his objections to the court, if any, within 10 days. If no objections are received within this period, the court issues a second copy of the court order, certified official seal, to present it for execution. Upon application, the order may be sent to a bailiff for execution. However, if the employer nevertheless submits objections within 10 days, the order is canceled (paragraph 7 of article 122, article 126, 128, 129, part 1 of article 130 of the Code of Civil Procedure of the Russian Federation). The court order for payment of three months' salary must also be executed immediately. Cancellation of a court order does not deprive you of the opportunity to file a claim in court.

Deadline for applying to court and labor inspection
As a general rule, an employee can go to court within three months from the day he learned of a violation of his rights (Part 1 of Article 392 of the Labor Code of the Russian Federation).
If the salary was accrued but not paid, and you continue to work in this organization, the deadline for going to court has not been missed in any case (clause 56 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).
When the salary was accrued but not paid, and the employment contract with the organization has already been terminated, the three-month period for going to court is counted from the moment of dismissal.
If your salary was not accrued, then the period begins to run from the day on which your salary should have been paid.
The important thing is that, even if the deadline is missed, you have the right to go to court. Subject to availability good reasons the court will restore the term (clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
As practice shows, these deadlines also apply when contacting regulatory authorities. Appealing to the authorities, regardless of the results of the consideration of the complaint, does not suspend the time limit for filing a lawsuit.

Pay attention!
When going to court with claims arising from labor relations, employees are exempt from paying state duty and legal expenses(Article 393 of the Labor Code of the Russian Federation).

Dismissal without early warning
If the fact of non-payment of wages is established, then you have the right to resign according to at will at any time, without notifying the employer two weeks in advance. The employer will be obliged to terminate the employment contract within the period specified in your application (Part 3 of Article 80 of the Labor Code of the Russian Federation).
Pay attention!
In addition to the above, you can report delays in salary payments to hotline Public Chamber RF by phone 8-800-700-8-80. Calls from any region of the Russian Federation are free. All information received will be transferred to Rostrud...

The material was prepared with the assistance of Konstantinov K.V.,
expert in the field labor law

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In addition to the explanations, I attach approximate form claims from the Yurgorod website.

General Director of LLC "___________"
Address: _____________________
From _____________________
Address: ______________________

Claim
I, ________________, carried out my labor activity at LLC “_________” (TIN/KPP ____________) from ___________ year to the end of ___________ year.
Despite the fact that the employment contract in writing was not concluded between me and the employer; I worked as a roofer.
In accordance with Art. 61 Labor Code Russian Federation an employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise established by this Code, other federal laws, other regulatory legal acts Russian Federation or an employment contract, or from the date factual assumption employee to work with the knowledge or on behalf of the employer or his authorized representative.
My actual performance of the functions of an employee is also confirmed by the presence of work schedules and other components of the employer’s document flow.
Throughout its entire labor activity I fulfilled my duties conscientiously job responsibilities, did not violate labor discipline, had no penalties, valued his reputation.
However, for _______ and ________ years I was not paid wages or bonuses.
Thus, upon dismissal, wages in the amount of _______ rubles and bonuses in the amount of ______ rubles for the last 2 months were not paid to me. The employer did not explain any reasons or grounds for this non-payment, although over the course of ______ and _____ _____ years he constantly promised to pay the arrears of wages, thereby keeping me at work.
In accordance with Art. 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than next day after the dismissed employee submits a request for payment. In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to this article deadline to pay the amount not disputed by him.
Thus, all amounts due to the employee from the employer were not paid to me on the day of dismissal. These employer actions put me in a difficult situation financial situation and created negative consequences for me, since I was forced to borrow money from friends and acquaintances.
In accordance with Art. 2 of the Labor Code of the Russian Federation based on generally accepted principles and norms international law and in accordance with the Constitution of the Russian Federation the basic principles legal regulation labor relations and other directly related relations, among others, it is recognized to ensure the right of each employee to timely and full size payment of fair wages that ensure a decent existence for a person for himself and his family, and not lower than that established by federal law minimum size wages.
According to Art. 1 of the Labor Code of the Russian Federation, the objectives of labor legislation are to establish state guarantees labor rights and freedoms of citizens, creation favorable conditions labor, protection of the rights and interests of workers and employers.
In accordance with Art. 362 of the Labor Code of the Russian Federation, managers and other officials of organizations, as well as employers - individuals those 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 and other federal laws.
To resolve this labor dispute and draw up necessary documents I had to apply for legal assistance to LLC “_________”, paying money in the amount of ________ rubles for the service provided to me.
According to paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.
Clause 2 of Art. 15 of the Civil Code of the Russian Federation establishes that losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property ( real damage), as well as lost income that this person would have received if normal conditions civil turnover, if his right had not been violated (lost profits).
Since I don't have legal education, and drawing up a claim is difficult for me, knowledge of the rules civil process I do not have, it was necessary for me to seek legal assistance, therefore I have the right to compensation for the expenses I incurred for legal services in full.
Based on the above, guided by Art. Art. 2, 140, 362 of the Labor Code of the Russian Federation, 15 of the Civil Code of the Russian Federation,
I demand:
1. Pay me arrears of wages and bonuses in the amount of _________ rubles.
2. Pay me the costs associated with seeking legal assistance in the amount of _________ rubles.

If my requirements are not met voluntarily within ten days, I will be forced to go to court to protect my violated rights.

How can you punish an accountant for incorrect accrual salaries

First you need to prove that the accountant calculated wages incorrectly. To do this, you need to contact your manager and state your complaints (requirements.)

If the manager does not oblige the accountant to correct the error, then you can contact the authorities that have the right to consider citizens’ complaints and check actions officials. This can be done in established by law order of the State Labor Inspectorate, the prosecutor's office, the court and the CTS. How to do this is described in more detail in the consultation that I sent you.

If the audits establish that the accountant actually calculated wages incorrectly, the head of the enterprise can hold the accountant accountable in the prescribed manner. Labor Code RF.

, Article 192. Disciplinary sanctions

For committing a disciplinary offense, that is, failure to comply or improper execution employee through his fault assigned to him labor responsibilities, the employer has the right to apply the following disciplinary sanctions:
1) remark;
2) reprimand;
3) dismissal due to relevant grounds.
Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) for individual categories employees may also be subject to other disciplinary sanctions.
Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of part one of Article 81 of this Code Code in cases where guilty actions giving grounds for loss of confidence, or accordingly immoral offense committed by an employee at the place of work and in connection with the performance of his job duties.

Article 193. Procedure for applying disciplinary sanctions

Before use disciplinary action the employer must request from the employee written explanation. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion representative body workers.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, but based on the results of an audit, inspection of financial and economic activities or audit- later than two years from the date of its commission. IN specified deadlines The time of criminal proceedings is not included.
For each disciplinary offense Only one disciplinary sanction may be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
(edited) Federal Law dated June 30, 2006 N 90-FZ)

A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

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What to do if an accountant makes a mistake accounting error in payroll? It is especially important to pay attention to the case when the error is made on a large scale. That is, in fact, the employee was overpaid. How then to keep excess funds and what to do? Let's consider this issue in detail.

What are we talking about?

First, let's define what the conversation is about. So, an accounting error when calculating wages is any arithmetic error. This definition is proposed by Rostrud in clarifications dated October 1, 2012 No. 1286-6-1. We will focus on this when considering the issue.

It turns out that a counting error should be called an error made during arithmetic calculations of wages.

EXAMPLE
An error occurred while entering the initial correct data into the program. The result was incorrect. Data may also be incorrect due to human factors.

Is the counting error:

1. arising as a result of the repeated transfer of the monthly amount of earnings by the employer to his employee;
2. when the employee’s unpaid rest was not taken into account when calculating wages;
3. accounting made more deductions for income tax than an employee should.

Such situations, according to the definition of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17, cannot be considered countable. The fact is that they were not admitted in the course of certain mathematical calculations.

A clear distinction between the concepts of counting and non-counting errors is important so that the employer can take appropriate measures based on this. In the case where the employee was given less money, than it was due, the missing amount should be added to him. If it is necessary to retain cash The employer's actions will vary depending on the type of error made.

If when calculating wages - a counting error

Part 2 of Article 137 of the Labor Code of the Russian Federation states that in this case the amount overpaid to the employee may be withheld.

The employer’s procedure is regulated by Part 3 of the same article. The company can make a deduction if the employee:

1. does not challenge such a decision;
2. I agree with the basis for withholding and the amount of the amount.

The deduction must be made within 1 calendar month after the overpayment.

Thus, the employer must first obtain written permission from the employee to conduct a feedback accounting transaction. After this, issue an appropriate order on the basis of which to make a deduction.

In this case, you can do something simpler. It is enough for the employee to sign the issued order to withhold funds from his salary. It is not necessary to obtain a separate written permission.

Part 1 of Article 138 of the Labor Code of the Russian Federation and clarifications of the Ministry of Health and Social Development dated November 16, 2011 No. 22-2-4852 indicate the following important point: The amount withheld cannot be more than 20% of the employee's payment minus income tax.

But what to do if the employee does not give written consent to withhold funds due to counting error when calculating wages? In this case, on the basis of Article 248 of the Labor Code of the Russian Federation, the employer can go to court.

If the error is not countable

If an error was made when paying an employee his earnings, which cannot be attributed to accounting, the employer must know: if the employee does not agree to the deduction excess amount it will be impossible to return the funds. Even through court! The only option is to get written consent employee to withhold the amount of money paid in excess of the required amount.

If you find an error, please highlight a piece of text and click Ctrl+Enter.

Excess reward amounts that have already been issued are non-refundable. This is the solution Supreme Court, based on the norms of the Civil and Labor Code.

For such good news we must thank the accountant Tatyana N. (name changed), thanks to whom the legal conflict. The woman quit, as they say, with a scandal from her native organization and began to sue former boss. She believed that with full payment, she was underpaid by 47 thousand rubles and kopecks. As it turned out, Tatyana was terribly mistaken.

The defendant-employer picked up old papers and found out that, on the contrary, he paid the woman too much in the service: she received 40 thousand rubles in hand, and staffing table the salary was 28 thousand. Of course, there were also bonuses, but they were not always formalized as they should be. As a result, as the employer calculated, the woman ran up almost 60 thousand rubles in excess of the norm. Therefore, the head of the organization turned to Tatyana with a counterclaim, saying, return the money.

The people in robes, having sorted out the documents, found out that the boss was right, and at first pinned the debt on the woman. De jure this money was recognized unjust enrichment. However, when the case reached the Supreme Court, it overturned the decision. The mistake of the lower judges was that they did not take into account that it was a question of salary, and salary is a sacred matter.