Hello! Is it possible to deduct a lump sum amount of material damage discovered on the eve of dismissal in the amount of average earnings upon dismissal? Does the limit apply in this case - no more than 20%? Can deductions be made from compensation?

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). Average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered. You can deduct no more than 20% from an employee’s monthly salary. If deductions are made from the last salary payable upon dismissal of an employee, the employer has the right to withhold the entire amount. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Art. 138 of the Labor Code of the Russian Federation, it is necessary to obtain written consent from the employee to withhold. This will avoid arguments with him. If an employee does not agree to the deduction, he can voluntarily deposit the amount due from him to the organization’s cash desk. If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss.

The rationale for this position is given below in the materials of the Glavbukh System vip version

1. Situation: How to retain debt from an employee who quits. Deductions are made at the initiative of the organization

Withhold the entire amount of debt from the last salary to be paid. Even if it exceeds 20 percent of the salary this month. The rules established by Part 1 of Article 138 of the Labor Code of the Russian Federation do not apply in this case. Based on the systemic interpretation of Articles 137, 138 and 140 of the Labor Code of the Russian Federation, the limitation on withholding in the amount of 20 percent of the due salary applies only to monthly payment of salaries. When an employee is dismissed, the full amount of the debt can be recovered. This point of view is shared by specialists from the Russian Ministry of Health and Social Development in their private explanations.*

The chief accountant advises: since the legislation does not directly state that in the situation under consideration it is possible not to comply with the restriction established by Part 1 of Article 138 of the Labor Code of the Russian Federation, obtain the employee’s written consent to withhold. This will avoid arguments with him.*

It should be noted that in the event of a lawsuit with an employee, the court may side with the latter, obliging the organization to comply with the established limit - 20 percent of the salary amount. For example, the Supreme Court of the Republic of Buryatia concluded that Article 138 of the Labor Code of the Russian Federation limits the amount of deductions for each salary payment in order to provide the employee with an amount sufficient to satisfy his basic living needs. It does not matter whether the employment relationship continues or the employee is dismissed. Consequently, when dismissing an employee, no more than 20 percent of the salary can be withheld from him (see the cassation ruling of the Supreme Court of the Republic of Buryatia dated February 27, 2012 No. 33-531).

Thus, having the written consent of the resigning employee to withhold the entire amount of his debt without restrictions, the organization will protect itself from litigation with him.

N.Z. Kovyazina

Holding order

Withhold the amount of material damage from the employee’s income in this order.

First, calculate the amount of losses, which includes:
– the amount of material damage;
– expenses for the acquisition or restoration of property (for example, repairs);
– expenses for compensation for damage that an employee caused to other citizens or organizations (for example, damage from an accident in the part not covered by insurance compensation).

The scope of losses that an employee who has caused material damage to the organization is required to compensate is specified in Article 238 of the Labor Code of the Russian Federation.

Creation of a special commission

To confirm the amount of material damage in an organization, you can create a special commission (Article 247 of the Labor Code of the Russian Federation). Its composition is approved by the head of the organization. It is advisable to create a commission when establishing facts of theft or abuse, as well as damage to valuables.

In commercial organizations

Indicate the identified shortage (cost of losses) in the matching statement.

Prepare matching statements:
- either according to the forms approved by paragraph 1.2 of the Resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88 (forms No. INV-18 or No. INV-19);
– or according to forms developed by the organization independently and approved by the head of the organization.

If the amount of material damage can be established on the basis of documents received from counterparties, a commission need not be created. For example, in the event of an accident caused by an employee, the amount of material damage can be determined using documents received from insurance and repair companies.

Damage assessment

Determine the amount of damage based on market prices on the day the damage was caused (the employee committed an accident, discovered a shortage, etc.). In this case, the damage cannot be assessed below the value of the property according to accounting data (including wear and tear). When determining damage, do not take into account actual losses within the limits of natural loss. This procedure is established by Article 246 of the Labor Code of the Russian Federation.

Written explanations from the employee

After determining the amount of damage, obtain written explanations from the employee about the reasons why it arose. If the employee refuses to do this, then draw up a report. This procedure is established by part 2 of article 247 of the Labor Code of the Russian Federation.

Retention Order

To recover the amount of damage from the guilty employee, the head of the organization must issue a withholding order. The order must be issued no later than a month after the commission establishes the amount of damage.

Calculation of the amount of damage

Based on the order, deduct the cost of damage from the employee’s income, not exceeding his average monthly salary. Taking into account this rule, it is necessary to recover damages both in cases where the employee bears limited financial liability, and in cases where financial liability arises for the full amount of damage.

An amount of damage exceeding the average monthly salary can be recovered from an employee only through the court (if he bears full financial responsibility). At the same time, the employee can voluntarily reimburse the amount of damage. In this case, by agreement of the parties, compensation for damage by installments is allowed.

This procedure is established by Article 248 of the Labor Code of the Russian Federation.

Situation: how to determine the average monthly earnings when calculating the amount of material damage that can be withheld from an employee’s income

The legislation does not provide for a methodology for calculating average monthly earnings. For all cases of maintaining average earnings, a uniform procedure has been established for its calculation based on the average daily (hourly) earnings (Article 139 of the Labor Code of the Russian Federation). Therefore, when calculating the amount of material damage, it is necessary to use it. The different names used to determine the amount of payments cannot serve as a basis for using any other procedure.

The cost of damage withheld from the employee’s income should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation). In this case, the average monthly earnings should be calculated based on the average daily (hourly) earnings and working days (hours) during the month in which the material damage was discovered (Article 139 of the Labor Code of the Russian Federation, clauses 9 and 13 of the Regulations approved by the Government Decree RF dated December 24, 2007 No. 922).

You can deduct no more than 20 percent from an employee’s monthly salary. Therefore, it will most likely be necessary to recover the amount of material damage in the amount of the average salary within several months.*

An example of calculating material damage recovered from an employee. An agreement on full financial liability has not been concluded with the employee.

In January, due to the fault of employee A.S. Kondratiev printer failed. The employee has limited financial liability.

The amount of material damage is estimated at 12,000 rubles.

Kondratyev’s average daily earnings is 900 rubles/day. There are 15 working days in January.

Kondratyev’s average monthly earnings in January amounted to 13,500 rubles. (900 rub./day ? 15 days).

Since the average monthly salary is more than the amount of damage, by order of the manager, 12,000 rubles are withheld from Kondratyev. At the same time, no more than 20 percent of each of his salaries.

An example of calculating material damage recovered from an employee. An agreement on full financial liability has been concluded with the employee

The organization identified a shortage of money in the cash register in the amount of 52,000 rubles. With cashier A.V. Dezhneva concluded an agreement on full financial liability. She admitted her guilt.

Dezhneva’s average earnings in the month the shortage was discovered is 10,000 rubles. Since the average earnings are less than the amount of damage, by order of the manager, 10,000 rubles are withheld from Dezhneva. Moreover, from each of her salaries - no more than 20 percent.

For five months, the accountant withheld 2,000 rubles from Dezhneva’s salary. Dezhneva refused to reimburse the rest of the damage and quit. The organization went to court to recover funds.*

An example of calculating an employee’s salary, taking into account deductions within his average earnings

On January 12, 2013, due to the fault of employee A.S. Kondratiev printer failed. An agreement on full financial responsibility has not been concluded with the employee.

The amount of material damage is estimated at 10,000 rubles.

During the period from January to December 2012, Kondratyev worked 250 days. During this period, he was credited with 200,000 rubles.

In January 2013 there are 17 working days.

Kondratiev’s average salary for the month in which the material damage occurred (January 2013) is:
200,000 rub. : 250 days ? 17 days = 13,600 rub.

Since the amount of material damage does not exceed Kondratiev’s average salary, the entire 10,000 rubles can be withheld from his income.

For January 2013, Kondratyev received a salary of 15,000 rubles. Kondratyev is provided with a standard personal income tax deduction in the amount of 400 rubles. (Kondratiev has no children).

The personal income tax amount for January 2013 is:
(15,000 rubles – 400 rubles) ? 13% = 1898 rub.

An employee's income after tax is:
15,000 rub. – 1898 rub. = 13,102 rub.

The maximum amount of deductions from an employee's monthly income is:
RUB 13,102 ? 20% = 2620 rub.

The amount of damage caused by the employee is greater than this amount. However, in January, the accountant withheld only 2,620 rubles from Kondratiev’s salary. The remaining 7380 rubles. (10,000 rubles – 2,620 rubles) the organization will deduct from the employee’s salary in the following months.

Deductions from compensation payments

Situation: is it possible to withhold the amount of material damage from compensation payments to an employee for the use of his personal property and from daily allowances

Yes, you can if the employee agrees to the retention.

At the initiative of the organization, it is impossible to deduct the amount of material damage from such payments. This conclusion can be made on the basis of Article 137 of the Labor Code of the Russian Federation. It says that deductions at the initiative of the organization should be made from salaries. Compensation payments (daily allowances, compensation for the use of personal property) guaranteed by the Labor Code of the Russian Federation (Articles 168 and 188 of the Labor Code of the Russian Federation) do not apply to wages (Part 1 of Article 129 of the Labor Code of the Russian Federation). At the same time, labor legislation does not establish any restrictions on deductions that an organization carries out not on its own initiative, but at the request of an employee. Therefore, if such a statement is made, the amount of material damage can be withheld from any payments.

If the employee does not agree to retention, act as such. Invite him to voluntarily compensate for the amount of material damage exceeding his average monthly earnings. He can:
– deposit the required amount into the cash register;
– with the consent of the organization, provide it with property equivalent to the damaged one (repair the damaged property);
– compensate for damage by installments.

This procedure is provided for in Article 248 of the Labor Code of the Russian Federation.

If the employee refused to voluntarily compensate for the damage or did not agree with its assessment, then he will have to go to court to repay the loss. You will also have to go to court if the withholding order was issued later than a month after determining the amount of damage (Article 248 of the Labor Code of the Russian Federation).*

At the same time, the organization has the right to fully or partially refuse to recover damages from an employee (Article 240 of the Labor Code of the Russian Federation).

Waiver of Damage Lien

The employer has the right to refuse to withhold damages from the employee. Refusal to recover may be complete or partial, taking into account the specific circumstances in which the damage was caused. This right is granted by Article 240 of the Labor Code of the Russian Federation.

Refusal to recover damages is permissible regardless of the following factors:
– the type of liability the employee bears (limited or full financial liability);
– form of ownership of the organization.

This is stated in paragraph 6 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52.

Exempt the employee from compensation for material damage by order.

N.Z. Kovyazina

Deputy Director of the Department of Wages, Labor Safety and Social Partnership of the Ministry of Health and Social Development of Russia

Today we will give you step by step instructions, how to recover material damage from an employee without going to court, and we will also tell you about cases when it will not be possible to recover material damage to an enterprise from an employee.

In the course of the activities of any organization, cases may arise when it suffers material losses in the event of damage or loss of property, or as a result of a lost contract. This almost always happens due to the fault of the employees. And if the damage is significant, the employer’s desire to compensate for the damage caused is quite understandable. But, unfortunately, this is not always possible, and if possible, then not to the full extent.

If the administration of an enterprise intends to punish a guilty employee, then it is imperative that everything is done correctly, otherwise, even if the employer is right, the employee will easily challenge the decision in court.

For any punishment of an employee, be it a financial penalty or disciplinary punishment, labor legislation provides for a certain procedure.

How to properly file a claim for material damage from an employee

Let us consider the procedure for recovering material damage from a guilty employee step by step.

• Step 1. It is necessary to determine the material damage caused in general terms and the presumably guilty employee. This is done, as a rule, with the help of a memo from the employee’s immediate supervisor, or the person responsible for lost or damaged material assets, if the damage was not caused by him.
• Step 2. A commission is being created to conduct an internal investigation. It is advisable to include in the commission an accountant of the material table and an employee who can assess the damage caused in the event of equipment failure. If there is no such employee in the organization, then you can invite an outside expert to participate in the commission. Or, another option, the commission requests expert opinion and includes it in the results of the investigation. During the investigation, members of the commission determine exactly what is missing or damaged and withdraw the exact amount in monetary terms.
• Step 3. The commission requests an explanation from the guilty employee. It is better to do this in writing and hand it to the employee against signature. This step is carried out in the same way as when conducting investigations regarding the imposition of disciplinary sanctions.
• Step 4. The commission examines all documents and makes a conclusion about the degree of guilt of the employee and the possibility of recovering damages from him. This cannot be done in all cases; they will be discussed in more detail below.
• Step 5. An order is issued to withhold funds from the employee in accordance with the conclusion made. If it is impossible to recover damages from the employee, then it is not necessary to issue an order.
• Step 6. Transferring the order to the accounting department for the basis for deducting amounts of money from the employee’s salary.

What to consider when conducting an investigation and calculating the amount of damage

When conducting an internal investigation and drawing up a conclusion, you need to remember the following nuances:

1. The amount of damage caused is calculated based on the residual value of the equipment or purchased goods. That is, if an employee breaks a completely written off computer, nothing can be recovered from him. Also, if he has lost material assets, then the amount is calculated based on the purchase price, without taking into account the markup.
2. Simultaneously with the recovery of material damage, the employee may be subject to disciplinary liability in the form of a reprimand or reprimand.
3. Lost profits cannot be included in the amount of material damage. That is, if due to the fault of the employee the contract was not concluded, its amount will not be considered material damage. In this case, the only way to punish the employee is disciplinary action.

When nothing can be withheld from an employee

There are four cases when an employer does not have the right to withhold material damage from an employee. They are enshrined in law.

1. Actions of force majeure. This includes natural and man-made disasters during which the employee was unable to preserve property and material assets.
2. Conditions of normal economic risk presuppose that the employee performs his official duties and causes damage in the course of them. For example, when introducing new technological processes and work methods.
3. Causing damage out of extreme necessity and for self-defense. For example, while trying to detain a thief, an employee dropped a cash register and broke it.
4. Lack of conditions necessary for storing material assets due to the fault of the employer. For example, the employer did not provide the company's cashier with a safe in which to keep material assets, or there were no bars on the windows or an alarm system in the warehouse.

If during the inspection at least one of the above circumstances is revealed, the employer is deprived of the right to withhold material damage from the employee, at least partially.

When can material damage be withheld in full?

The full cost of damage caused by an employee can be withheld in the following cases:

1. The employee is the head of the enterprise. Either the chief accountant or deputy manager, but provided that an agreement on full financial responsibility has been concluded with them.
2. Any other employee with whom an agreement on full financial responsibility has been concluded and who receives material assets according to documents. This primarily includes the storekeeper, cashier, and salesperson.
3. An employee who received material assets one-time, but with paperwork. For example, he was given funds to account for.
4. The employee was intoxicated when causing material damage.
5. The employee caused damage to the property of the enterprise not during the performance of official duties. For example, a driver used a company car after finishing work and crashed it.
6. The employee caused the damage as a result of malicious intent.
7. The employee was convicted of damaging property.
8. An employee who did not have the right to disclose information protected by law.

When damage can only be partially contained

If the conditions for full financial liability cannot be applied to the employee, but it is also impossible to relieve him of it, then the damage caused will be partially withheld from him, in the amount of average earnings.

Pay attention! The damage is not deducted in the amount of the salary for the current month, but rather the average earnings for the year are calculated. With some forms of remuneration, these can be completely different amounts.

Other nuances when withholding material damage

• Even if the employer does not have the legal ability to withhold from the employee the full amount of damage caused, the employee can agree to reimburse the entire amount.
• More than 20% cannot be withheld from an employee’s earnings. In some cases, the amount can reach 50%, but this decision can only be made by a court.
• If an employee quits or quits during the investigation, it will be possible to recover damages in full only through the court. Of the payments due to him upon dismissal, no more than 20% can be withheld.

Only if the entire procedure for deducting the amount of damage caused from the employee is strictly followed and there is no violation of the law, the employer can be sure that the employee will not be able to challenge the deduction in court.

You can ask our on-duty labor law lawyer your questions free of charge.

Any employee, in the performance of his official duties, uses various company property, such as office equipment, equipment, tools, furniture, money, etc.

Therefore, along with the main ones, the employee’s responsibilities include caring for the company’s property entrusted to him (paragraph 7, part 2, article 21 of the Labor Code of the Russian Federation).

Let's imagine a situation - an employee has lost the company laptop. An investigation was conducted and the employee’s guilt was established.

Determining the amount of damage

The amount of damage is determined by the actual losses on the day it was caused at market prices. But at the same time, the amount of damage cannot be lower than the residual value of the property according to accounting data (Part 1 of Article 246 of the Labor Code of the Russian Federation).

If it is impossible to determine the day the damage was caused, the amount of damage is determined on the day it was discovered (paragraph 2, paragraph 13 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52).

When the amount of damage is determined, the employer has the right to involve the employee in (paragraph 6, part 1, article 22 of the Labor Code of the Russian Federation).

Three ways to recover damages

• on a voluntary basis (part 4 of article 248 of the Labor Code of the Russian Federation);
• within the limits of their responsibility within the framework of labor relations (Article 241 of the Labor Code of the Russian Federation);
• forcibly, on the basis of a court decision (parts 2 and 4 of Article 248 of the Labor Code of the Russian Federation).

Each method has its own characteristics.

Compensation for damages at the employee's free will

The best way to resolve the conflict is the employee’s voluntary agreement to compensate for the damage. This method has several advantages. Parties to an employment contract may:

• establish any amount of deduction, for example, a lump sum in the full amount, even if it exceeds 20% of the employee’s salary;
• agree on any terms, forms and methods of debt repayment.

For example, an employee can pay the debt in a lump sum or in installments. In addition, you can agree with the employee on compensation for damages not in cash, but in kind. That is, the employee can compensate for the damage by providing equivalent property or correcting the damaged property (Part 5 of Article 248 of the Labor Code of the Russian Federation).

An agreement with an employee to voluntarily repay a debt can be formalized in different ways. For example, you can enter into a separate agreement or ask the employee to write a receipt or statement.

The following situation is possible: the employee gave a written obligation to compensate for material damage, and then decided to quit and refuses to pay the debt. The employer is obliged:

• issue an order to dismiss the employee;
• issue a work book;
• make final payments to the employee. At the same time, without the consent of the employee, the accountant does not have the right to withhold the outstanding amount of damage at a time if the total amount of all deductions exceeds 20% of the payments due to him upon dismissal (Part 1 of Article 138 of the Labor Code of the Russian Federation). In this case, the outstanding debt can only be collected by force, that is, through the court (Part 4 of Article 248 of the Labor Code of the Russian Federation).

Financial liability under the Labor Code

If the employee himself does not agree to pay for the damage, the amount of compensation will depend on what financial responsibility is assigned to him. It could be:

• limited—within the average monthly salary of an employee (Article 241 of the Labor Code of the Russian Federation);
• full - regardless of the employee’s salary (Article 242 of the Labor Code of the Russian Federation).

Limited liability

In most cases, the employee’s financial liability is limited (Article 241 of the Labor Code of the Russian Federation). That is, the employee is obliged to reimburse an amount that does not exceed his average monthly earnings.

We collect only average monthly earnings

The Labor Code does not contain a list of situations in which an employee is liable only within the limits of his average monthly earnings. In practice, employees bear limited financial liability in the following cases:

• in case of damage to equipment, tools, materials;
• incorrect preparation of documents when this causes material damage to the company (for example, short delivery of goods);
• the company did not receive money due to the employee’s negligence in his official duties;
• the company paid a fine for its employee.

Calculation of average monthly earnings

Average monthly earnings is the maximum amount that can be recovered from an employee with limited financial liability. How to calculate it?

The legislation does not provide for a separate methodology for calculating average monthly earnings for situations where it needs to be recovered from an employee for damage caused by him.

In cases where it comes to preserving the employee’s average earnings, the accountant uses a single calculation procedure based on the average daily (hourly) earnings, which is established:

• Article 139 of the Labor Code;
• Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922 (hereinafter referred to as the Regulations).

When calculating the amount of material damage, it is necessary to use the general rules, since the accountant has no other calculation option.

The total amount of the employee’s wages for the 12 months before the month of signing the withholding order must be divided by the number of days (hours) worked in this period. Multiply the resulting value by the number of working days (hours) according to the schedule of the guilty employee in the month the order was signed (clause 4 of the Regulations).

Example 1. We calculate the average monthly earnings

In November 2015, a laptop was lost due to the fault of an employee. An internal investigation was conducted. The employee admitted his guilt. The amount of material damage was estimated at 27,150 rubles.

An agreement on full financial liability has not been concluded with the employee. The fact that the laptop was handed over was recorded. This means that you can recover no more than his average monthly earnings.

The order to recover damages from the employee was signed in November 2015.

The employee works a 40-hour, five-day work week. The billing period is from November 1, 2014 to October 31, 2015, of which 245 days were worked. The salary for these days amounted to 330,0000 rubles.

Solution

The employee has daily working hours. Therefore, to calculate the average monthly earnings, you first need to determine the average daily earnings.

The average daily earnings will be 1346.94 rubles. (RUB 330,000: 245 work days).

The order to recover damages was signed in November 2015. This month has 20 working days. This means that the average monthly earnings will be 26,938.8 rubles. (RUB 1,346.94 × 20 working days).

The amount of material damage is RUB 27,150.

The company will not be able to retain it in full, only 26,938.8 rubles. However, other restrictions must be observed.

Maximum deduction amount per month

In addition to the general limit on the amount of deductions, there is one more limitation. For each salary payment, you cannot withhold more than 20% of its amount (Part 1 of Article 138 of the Labor Code of the Russian Federation). If the amount of damage is greater, the collection process will take several months.

Only in certain cases can you recover more than 20% of your salary. In particular, up to 70% of the salary can be withheld when collecting damage caused by a crime (Part 3 of Article 138 of the Labor Code of the Russian Federation). But the fact of the crime is established by the court (Part 2 of Article 8 of the Code of Criminal Procedure of the Russian Federation).

The amount of deduction is calculated based on the employee’s salary minus personal income tax (Clause 1, Article 99 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”).

Example 2. We calculate the limit on the amount of deduction per month

Let's continue with example 1. The amount of material damage is 27,150 rubles. The company has the right to withhold only RUB 26,938.80. How much can be withheld from an employee if his salary for November was 57,000 rubles?

He is not entitled to standard tax deductions.

Solution

Maximum deduction amount

From income for November, no more than 9,918 rubles can be withheld from an employee. [(RUB 57,000 - RUB 7,410) × 20%].

Actual withholding amount

9918 rub.< 26 938,8 руб. Из зарплаты сотрудника за ноябрь 2015 года бухгалтер может удержать только 9918 руб. Оставшуюся сумму в размере 17 020,8 руб. (26 938,80 руб. - 9918 руб.) можно будет удержать из зарплаты за следующие месяцы.

Full financial responsibility

Full financial liability involves compensation by the employee for the entire amount of damage (Part 1 of Article 242 of the Labor Code of the Russian Federation).

Agreement on full financial responsibility

An agreement on full financial liability can be concluded with employees of special positions or employees performing special work. These positions and jobs are listed in Resolution No. 85 of the Ministry of Labor of Russia dated December 31, 2002. For example, the list includes the following positions:

• delivery driver;
• salesman;
• cashier;
• warehouse manager, etc.

An agreement on full financial liability can be concluded with managers, their deputies and chief accountants (Part 2 of Article 243 and Part 1 of Article 277 of the Labor Code of the Russian Federation).

Cases of full financial liability are listed in Article 243 of the Labor Code. In particular, these include the following situations:

• the damage was caused while under the influence of alcohol, drugs or other toxic substances;
• causing damage while the employee was not performing his job duties;
• an employee disclosed a trade secret.

Maximum deduction amount

In case of full financial liability, the employee compensates the entire amount of damage. But even in this case, you need to calculate the maximum amount of deduction for each month, since more than 20% of the salary cannot be withheld (Part 1 of Article 138 of the Labor Code of the Russian Federation). An example of the calculation is given above (example 2).

Grounds for retention - order of the director

The head of the company has the right to decide the issue of withholding material damage from the employee. He can (Article 240 of the Labor Code of the Russian Federation):

• collect a debt in the amount of average monthly earnings (with limited financial liability of the employee);
• fully or partially forgive the damage.

Any decision of the manager is formalized by order. The head of the company must issue an order within one month from the day on which the amount of material damage is established (Part 1 of Article 248 of the Labor Code of the Russian Federation).

Just do not forget that the employee must be familiarized with the order to recover damages against signature. If he refuses to sign the order, a report is drawn up.

For an accountant, the order is the basis for deducting the amount of damage from the employee’s salary.

Compensation through court

In some cases, the employer will still have to file a claim in court, in particular (parts 2 and 4 of Article 248 of the Labor Code of the Russian Federation):

• if the employee disputes the amount of material damage for which the employer is charging him with compensation;
• the employee refuses to voluntarily compensate for material damage;
• the employer missed the one-month deadline for issuing an order to recover damages;
• to recover part of the amount of damage exceeding the average monthly salary;
• for the employee to reimburse the company for expenses that cannot be recognized as direct actual damage.

In this case, a shortened limitation period is applied - one year (Part 2 of Article 392 of the Labor Code of the Russian Federation).

Unfortunately, no employer is insured against the possibility of property damage by an employee. Sometimes this is caused by the employee’s negligent attitude towards his professional duties. It is completely natural for the employer to want to compensate for the damage caused at the expense of the employee. But can you always count on this? How to properly recover material damage from an employee? What mistakes are most often made by employers in this case?

When does responsibility come?

The onset of financial liability for causing damage to the employer’s property is provided for by the Labor Code of the Russian Federation (Article 283). Financial liability can be characterized by two characteristics:

• one of its parties must be an individual who works for the employer at the time of damage to property;
• The amount of liability depends on the extent of the damage and the nature of the violation that led to damage to the property.

Financial liability occurs provided that:

• direct damage;
• unlawful behavior, negligence, improper performance of professional duties;
• the fault of the employee who caused the damage.

If damage to the employer's property is caused by force majeure, defense, or extreme necessity, financial liability does not arise. Also, the employee is not responsible for property when the employer has not provided the necessary conditions for its safety.

What is financial responsibility?

The essence of financial liability lies in the employee’s obligation to compensate for the material loss caused by him. In this case, only damaged property is implied; lost profits are not taken into account.

The definition of material damage includes an actual decrease in the quantity or deterioration in the quality of the employer’s property. For example, lack of money, damaged equipment, raw materials, materials, costs of paying a fine in relation to the employer, who was appointed due to the fault of the employee.

What is the employee's responsibility?

The main types of financial liability of employees are presented in the table:

A contract of full liability - a guarantee or an attempt by the employer to insure its property?

It is common practice for employers to conclude an agreement on full financial responsibility with each person hired. At the same time, he believes that such an action reliably insures him in the event of property damage caused by an employee. But this is not always the case. Such an agreement will not become a “magic wand” for the employer in any case.

For example, the employer tried to obtain compensation for damage caused by the fault of the head of the department in the performance of professional duties. However, the court refused this, despite the existence of an agreement on full financial liability between the employee and the organization. The reason was that the official duties of this employee did not directly include ensuring the safety of the company’s property.

How to recover damages caused?

The procedure for recovering material damage caused to an employer consists of several stages:

• conducting an inventory of funds;
• creation of a commission to conduct an official investigation and establish the reasons that caused the damage;
• obtaining from the employee a written explanation of the reasons for the loss. If he refuses, then the refusal should be recorded in the act;
• calculation of the amount of damage caused in the market valuation on the day of its occurrence. At the same time, the value of lost or damaged property should not be less than that recorded in the accounting records;
• differentiation of the degree of guilt and responsibility between employees if the loss was caused by the fault of several persons.

The employer has the opportunity to withhold losses from the perpetrator not only through the court, but also in pre-trial proceedings.

Without recourse to the courts, a shortfall not exceeding the employee’s average monthly earnings is withheld. An order for this must be created no later than a month after the incident occurred and losses were calculated. If an employee objects to the employer’s actions, he can go to court.

The parties may agree to pay off the damage in installments. In this case, you should draw up a payment schedule and indicate specific terms. If an employee has undertaken to compensate for the damage caused, but quits without doing so, the employer can go to court. Also, only in court can the issue of collecting damages from an employee in an amount exceeding his average earnings be resolved if he refuses to voluntarily do so.

Reflection of damage on accounts: postings

The value of the property established during the inventory must be shown in the debit of account 94. Read also the article: → “”. This amount is recorded in the accounting accounts as follows:

The shortfall cannot be withheld from an employee if the employer does not have documentary evidence of his guilt.

The most common mistakes employers make when recovering damages

When trying to obtain compensation for material damage from an employee, an employer often makes the following mistakes:

• an attempt to obtain full compensation for the damage caused. Full compensation for damage is allowed only in cases strictly defined by law (Article 241 of the Labor Code). Also, the manager and chief accountant of the enterprise bears full financial responsibility.;
• concluding an agreement with each employee on full financial liability in the hope of being able to recover the entire loss. Even if such an agreement was concluded, but there were no legal grounds for it (the employee’s position is not on a special list, or his activities are not related to material assets), then it will be declared invalid by the court;
• an attempt to recover from the employee not only the damage caused, but also the lost profit. The employee is obliged to compensate only for direct losses;
• The employer’s mistake is to withhold the amount of the administrative penalty imposed on him due to the fault of the employee. For example, the seller did not ensure that expired food products were removed from the shelves in a timely manner. As a result of the inspection, an administrative fine was imposed on the store, which the employer paid in the amount of 50,000 rubles. After this, the employer tried to withhold the amount of the fine from the seller who committed the violation, whose earnings are 22,000 rubles. The seller refused to compensate for damages in this amount, and the employer went to court. The court, taking into account all the circumstances, rejected the employer’s claim. In this case, he can receive compensation for the damage caused only partially in an amount not exceeding the average salary of the employee.

Answers to pressing questions about the recovery of material damage from an employee

Question No. 1. Is it possible to pay off material damage in installments?

Yes, the possibility of repaying the damage caused to the employer in parts exists. This is permissible subject to the mutual consent of the parties to the employment contract. To do this, it is necessary to draw up a written commitment from the employee to repay the debt in installments and indicate a payment schedule. On this obligation, the head of the enterprise must put a resolution that he does not object. It is possible to arrange an installment plan with a separate order or order, which will indicate the payment schedule.

Question No. 2. Should an employer be required to withhold damages caused by an employee?

Recovery of material damage is not the responsibility of the employer. Rather, it is his right. The employer has the right to refuse this procedure if the circumstances specified in Article 240 of the Labor Code of the Russian Federation occur. These include the difficult financial situation of the employee, a small amount of damage caused, and dependent minor children. The employer may not recover material damage initially, or refuse to recover it at the stage of legal proceedings. In this case, you must issue a waiver of claims in writing.

In most cases, the employer can recover only that part of the damage caused that does not exceed the average salary of the employee. The list of cases when full financial liability occurs is established by law and the employer cannot expand it in any way. The regulations do not establish a specific procedure for calculating average earnings for the purpose of compensating for losses caused by an employee. When determining it, you can use general calculation rules based on the duration of the billing period of 12 months.

Question No. 4. How much, in accordance with the law, can the employer withhold from the culprit for the damage caused?

If the case does not fall under the legally defined option of full repayment of the cost of the loss, then the most that the employer can count on is the average salary of the employee. You cannot deduct more than a fifth of your earnings per month. If the employer believes that he has the right to demand repayment of the damage caused in full, but the employee does not want to do this, then such a disagreement must be resolved in court.