Withholding rules from wages. Types of deductions from the employee's wages

Commentary on Article 138

1. This article sets the maximum amount of deductions from wages, limiting it to a certain share of paid earnings. These restrictions are intended to ensure special protection of wages, which is the main or even the only source of livelihood not only for the employee, but often for his family members, and thereby guarantee the performance of wages of its socio-economic function.

2. By general rule for each payment of wages, no more than 20% of the total amount for all types of deductions can be withheld from it. This deduction limit applies in all cases where federal laws do not provide otherwise.

Deductions based on the employer's order may under no circumstances exceed 20%.

3. The amount of deductions should not exceed 50% of wages in cases where deductions are made on the basis of a writ of execution. Executive documents are understood as the documents specified in Art. 7 of the Federal Law "On enforcement proceedings": orders of execution issued by the courts; court orders; decisions of bodies (officials) authorized to consider cases of administrative offenses; notarized agreements on the payment of alimony; orders of the bailiff-executor.

4. Part 2 of Art. 138 Labor Code introduces an additional restriction: if deductions are made on the basis of several executive documents, then the total amount of deductions still cannot exceed 50% of the employee's earnings.

5. The amount of deductions should not exceed 70% of wages in cases where deductions are made when:

Serving correctional labor on the basis of a court sentence;

Recovery of alimony for minor children;

Compensation for harm caused to the health of another person;

Compensation for harm to persons who have suffered damage in connection with the death of the breadwinner;

Compensation for damage caused by a crime.

6. In accordance with Art. 50 of the Criminal Code, when a punishment in the form of correctional labor is imposed, deductions are made from the convict's earnings in the amount of 5 to 20%. If, along with this, deductions are made on other grounds, then the total amount of deductions cannot exceed 70% of earnings.

7. In accordance with Art. Art. 80 and 81 of the SK, if parents do not provide maintenance for their minor children, the funds for the maintenance of children (alimony) are collected in court, while the amount of alimony is determined either by a share of earnings (one quarter for one child, one third for two and half for three or more, and this amount can be increased and decreased by the court, taking into account financial situation the debtor, children for whose maintenance alimony is being collected, and his other minor children), or, in the absence of a regular income from the debtor, a firm sum. Furthermore, in accordance with Art. Art. 100 and 103 CK, it is possible to conclude a notarized agreement on the payment of alimony, in which the amount of alimony for minor children must be established not less than that provided for in Art. 81 SK. Thus, the amount of alimony collected for minor children may be equal to 50% of earnings. If at the same time other deductions are made, then their total amount cannot exceed 70% of earnings.

The increased size of restrictions on deductions from wages applies to the collection of alimony only for minor children. When collecting alimony on the basis of executive documents for the maintenance of other persons (disabled parents, spouses, adults, but disabled children, etc.), the total amount of deductions cannot exceed 50% of earnings.

8. In accordance with Art. 1085 of the Civil Code, in case of injury to a citizen or damage to his health, the lost income and additional expenses incurred in connection with this are subject to compensation. Compensation for this damage is made in monthly payments (Article 1092 of the Civil Code), which is possible only by deductions from wages. In this case, the total amount of deductions cannot exceed 70% of earnings.

9. In case of causing death to a citizen in accordance with Art. 1088 of the Civil Code, the right to compensation for the property damage that has arisen in this case has persons who were dependent on him, and some other persons. Reimbursement is subject to that share of the deceased's income that the dependents received or had the right to receive for their maintenance during his life (Article 1089 of the Civil Code). In this case, the total amount of deductions from the wages of the tortfeasor can also be up to 70% of the earnings.

10. If the damage is caused by a crime, which should clearly follow from the content of the writ of execution, up to 70% of earnings are also subject to withholding.

11. In accordance with Art. 65 of the Federal Law "On Enforcement Proceedings", deductions are made from the wages due to be handed over to the debtor, that is, after withholding taxes.

If the amount of the debtor's wages is not enough to meet the claims of all claimants, it is distributed between them in the order established by Art. 78 of the Federal Law "On Enforcement Proceedings": first of all, claims for the recovery of alimony, compensation for harm caused to health, as well as compensation for harm to persons who have suffered damage as a result of the death of the breadwinner are satisfied, and then - all other claims. If the amount of wages to be withheld is not enough to satisfy the claims of claimants of one queue, then it is distributed between them in proportion to the amount due to each of them.

12. A similar procedure for withholding applies to other types of income of the debtor, including those paid by the employer (monetary remuneration under construction contracts, copyright and other remuneration, income from valuable papers etc.).

Levy of claims on social insurance benefits (for temporary disability, for pregnancy and childbirth, for caring for a child during leave until he reaches the age of one and a half years) is made only by a court decision, a court order on the recovery of alimony or a notarized agreement on the payment of alimony, or by a court decision on compensation for damage caused to health and compensation for harm to persons who have suffered damage as a result of the death of the breadwinner (Article 68 of the Federal Law "On Enforcement Proceedings").

13. Part 4 of Art. 138 of the Labor Code contains an additional restriction on deductions from wages, prohibiting them from being made from those payments that, in accordance with federal law, are not levied. The list of such payments is established by Art. 69 of the Federal Law "On Enforcement Proceedings". Some of them are related to wages or paid by the employer. These include:

Payments in compensation for harm caused to health, as well as in compensation for harm to persons who have suffered damage as a result of the death of the breadwinner;

Payments in connection with the birth of a child; mothers with many children; to victims of an industrial accident for additional food, Spa treatment, prosthetics and care costs;

Payments for work with harmful working conditions or in extreme situations, as well as for citizens exposed to radiation as a result of disasters or accidents at nuclear power plants;

Payments made by the organization in connection with the birth of a child, with the death of relatives, with the registration of marriage;

Severance pay paid upon dismissal of an employee.

The grounds and procedure for deduction from the employee's salary is carried out only in cases established by the current legislation, namely, provided for by the Labor Code of the Russian Federation and other federal laws... The amount of all deductions cannot exceed 70% of the amount of accrued wages.

In this article:

Withholding from the employee's salary

Withholding from wages is an act of an employer not to pay some part of the remuneration due for work on the basis of a provision of the Labor Code or a special law.

In this case, in order to avoid illegal cases of non-payment of a part of the salary, the employee must make sure with the order of the employer to withhold a certain part of the salary or demand another document, in accordance with which the execution is levied on the employee's income.

The cases of retention are quite diverse. This may be excessive amounts of salary payments, unworked time that was paid. And of course, the unfulfilled obligations of the employee to third parties, for example, tax arrears, non-payment of alimony, collection on the employee's income by a court decision and other cases.

Grounds and procedure for deduction from the employee's salary

Withholding can only be made by the employer, since the employee has an employment relationship with him and it is he who calculates the wages of the employee. Before the deduction, the employer is obliged to notify the employee in writing of the deduction and its amount no later than one month.

The chief accountant or HR department can also notify this in a letter addressed to the employee. The letter or notice must contain the period of time when the excess amount or unworked advance was accrued, as well as a reference to the rule of law. The letter may be accompanied by documents certifying the withdrawal of part of the amount from the employee's earnings, for example, an act drawn up about this, a payroll, a payroll.

If the employer calculated the salary for the employee using incorrect calculations, improper use of legislation, then in this case the withholding cannot be applied, with the exception of the detection of the so-called counting error.

Unfortunately, in practice, even if the employer incorrectly conducts the payment of the patch, then part of the amount of overpaid earnings will be simply recalculated in the future or, in one way or another, withheld with reference to the counting error.

Salary deductions

For reasons labor legislation the amount of all deductions made by the employer cannot be more than twenty percent. If the claim for the employee's earnings is made on the basis of a separate law, then a fifty percent deduction is applied.

However, there are exceptions to these rules, when the specified percentages are not applied as a result of correctional labor served by employees, in case of harm to health to third parties, compensation for damage as a result of unlawful actions of the employee. On these grounds for exclusion, a seventy percent deduction from the employee's earnings is applied. But this is only in extreme cases and strictly for the reasons indicated.

Illegal deductions from wages and their consequences

In most cases, due to the illiteracy of workers in the field of labor legislation, the employer often deceives and other abuses of their powers.

Illegal deductions include:

decrease in earnings for no particular reason and without reference to the rule of law (for example, because of the situation in the country, because of the crisis). If the employer is not able to pay wages to his employees, then there is a bankruptcy procedure;
fixing fines for violation labor discipline... The employer can only limit the amount of bonuses, since the employee behaved in bad faith in the performance of labor duties;
application of a larger percentage of deduction from earnings than that specified in the law.

In all cases of illegal application of withholding, the employee can apply to the trade union body, if it is formed at the enterprise, to labor inspection, as well as with a claim in court.

In some cases, in the implementation of an employment relationship, a deduction from the employee's wages may be required. Current legislation provides different kinds deductions from wages according to the Labor Code of the Russian Federation - they can be carried out both under the writ of execution, and at the initiative of the employee or employer, depending on situations and available grounds. At the same time, both accountants and employers, and the employees themselves, from whose earnings the funds will be withheld, should know exactly the procedure for carrying out deductions from wages and the grounds according to which they will be made.

What is deduction from wages according to the Labor Code of the Russian Federation - legislative norms

The current legislation provides that in some cases a deduction can be made from the employee's salary. This procedure is most often associated with the need to reimburse certain funds at the expense of the employee. At the same time, the procedure for its implementation is precisely enshrined in the provisions of the current legislation, and the main document regulating this aspect of legal relations is Labor Code... In particular, deductions from wages under the Labor Code of the Russian Federation are considered by the following articles of the aforementioned document:

Art. 130. The provisions of this article regulate the provision of certain guarantees in matters of remuneration to all workers on Russian territory. One of these guarantees is the limitation of the amount of deductions from their wages.
Art. 136. The normative information set forth in this article requires the employer to indicate, when transferring wages to the employee, all deductions made from wages, as well as the grounds for carrying out this procedure.
Art. 137. Its principles imply the limited nature of deductions from the employee's salary, and also provide a strict list of grounds on which funds from the employee's earnings can be withheld to pay off debts directly to the employer. In addition, this article also assumes the use of other federal regulations for their application in matters of holding deductions from an employee's earnings.
Art. 138. This article regulates the limit and amount of deductions made from wages. In particular, it assumes the possibility of withholding no more than 20 percent of an employee's earnings from his salary in general cases, for example, when he is financially liable to the employer, and no more than 50 percent of earnings in situations stipulated by separate federal laws, for example, under executive sheets. In the event that deductions are made on grounds such as compensation for harm to health, payment of alimony or serving correctional labor, their amount can be up to 70 percent of the employee's earnings.
Art. 240. The principles set forth in the aforementioned article give the employer the unconditional right to refuse to recover the damage caused to him and to carry out the corresponding deductions.

As can be understood from the above standards, deductions from wages can be regulated by other regulatory documents. Therefore, both employers and employees should familiarize themselves with the following regulations:

Types of deductions from wages

Based regulatory framework of the current legislation, the main types of deductions from wages can be distinguished. In this case, the main criterion for such a division is the compulsory nature of such contributions. Accordingly, deductions from wages by type can be subdivided into:

Mandatory or unconditional. Making such deductions is the direct responsibility of the employer and does not require the consent of the employee for their appointment.
At the initiative of the employer. The employer has the right to withhold payments from the employee's salary if he has caused direct damage to his property or property of third parties in the course of the employment relationship. In this case, the employee's consent is also not required, but the employer is not obliged to make such deductions and can refuse them without consequences.
At the initiative of the employee. In some cases, the employee himself may ask for deductions from wages. The purpose of such actions may be to reduce the burden on the employee. It should be remembered that in some situations the employer does not have the right to refuse an employee to hold deductions, and in others, they are carried out only with the consent of both parties to the employment relationship.

Considering a large number of possible grounds for carrying out deductions from wages, you should consider their different types in more detail.

Mandatory and unconditional deductions from wages

Mandatory deductions include those that cannot be waived by either the employee or the employer. Accordingly, most often the basis for making such withholdings is the orders of the relevant state authorities - courts, executive bodies or other authorities. The documents that unequivocally indicate the need for mandatory deduction from salaries include:

Failure by the employer to take into account and comply with the above documents may already lead to the imposition of liability on the employer himself.

Deduction from wages at the initiative of the employee

V individual cases the employee himself may be the initiator of the wage deduction procedure. For example, it may simply be more convenient for employees if the funds necessary for various purposes are deducted from their wages directly. At the same time, the employer is far from always obliged to fulfill such a requirement of the employee, but in some cases he has no right to refuse to fulfill it. In general, employee-initiated deductions from wages can be made for the following purposes:

Payment of union dues. If an employee is a union member, he has the right to require the employer to withhold the amount of the established union dues directly from wages. This is the only basis for deduction from wages at the initiative of the employee, according to which the employer does not have the right to refuse the employee.
Donations to charitable foundations. Some employees may participate in various charities, and at the same time, for greater convenience, ask the employer to hold a certain amount of deductions in their favor.
Insurance payment. Another option for carrying out deductions from wages is to pay for the services of insurance companies - for many employees this method is the simplest and most convenient option.
Loan payments. Some financial institutions may offer the possibility of direct loan repayment from the employee's salary - however, this also requires the consent of the employer.

In general, in most cases, employers do not refuse employees to carry out requested deductions from wages. In this case, the employee has the right to write to the employer an application to cancel the deductions at any time.

Employee-initiated deductions are still considered deductions and are taken into account when calculating the total amount of funds withheld. At the same time, they belong to the last most important category of deductions and should be ignored if the total amount of claims against the employee exceeds the established percentage in relation to the salary.

Deductions from wages initiated by the employer

Most often, employer-initiated deductions from wages are carried out in connection with bearing. In this case, it is necessary to remember about the limits of liability and take them into account when assigning deductions. In addition, in the process of carrying out labor activities, other cases may arise when funds should be withheld from the employee's salary, which may not always imply that the latter has financial responsibility. In general, most often, at the initiative of the employer, deduction from wages is made in the following cases:

An important fact is that the procedure for deductions for fuel, communications, products of the enterprise must be provided for in local regulations,orwith an employee. At the same time, the provisions of these documents cannot contradict the established requirements of labor legislation.

How to deduct from an employee's salary - procedure

Conducting deduction from wages in many cases is the direct and immediate responsibility of the employer, but this procedure is not always carried out in the required manner. The procedure for withholding funds from the employee's salary may vary depending on the basis on which it is carried out, however, the general rules are the same in all cases. It looks like this:

The employer or accounting department receives a document with the grounds for holding the deduction. If it is carried out at the initiative of the employer, it may be a separate order. With deductions under orders of execution and in other cases of mandatory collection of funds, as well as with the initiative of an employee, a separate order is not needed if it is not spelled out in internal regulations.
The salary is calculated for the employee and all due deductions and deductions are calculated. In this case, personal income tax is calculated from the total amount of the employee's earnings, and all other deductions are deducted from the salary after the personal income tax has been taken into account. In this case, tax deductions are also taken into account - therefore, deductions in most cases relate to the total income of employees.
The employer carries out withholding of personal income tax from the employee.
The employee is paid his salary minus any deductions due.
The employer, if the withholding is in favor of third parties, within three days after the payment of the salary, ensures the transfer of funds to the required current accounts.

Deductions of a mandatory nature must be made with each payment of wages and income equivalent to it, while others may imply a different procedure.

At the moment, employers quite often practice deductions from an employee's wages for various reasons. Let's consider this issue in more detail.

Deduction from wages can be made in the cases specified in Art. 137 of the Labor Code of the Russian Federation (or other federal laws).

Retention can be divided into categories:

required;
carried out at the initiative of the employer;
carried out by agreement between the employee and the employer.

The amount of deductions is limited. According to the total amount of all deductions for each payment of wages cannot exceed 20%, and in cases stipulated by federal laws - 50% of its amount.

Deductions from wages when serving correctional labor, collecting alimony for minor children, compensation for harm caused to the health of another person, compensation for harm to persons who have suffered damage in connection with the death of a breadwinner, and compensation for damage caused by a crime can amount to up to 70% of wages.

Notes: Deductions from wages under executive documents are calculated from the amount remaining after taxes are withheld.

Withholding from income specified in Article 101 of the Federal Law of 02.10.2007 N 229-ФЗ "On Enforcement Proceedings" is prohibited.

Mandatory deductions

Mandatory deductions include:

1. Income tax individuals ... According to the provisions of Art. 226 of the Tax Code of the Russian Federation, organizations are obliged to make withholdings from the taxpayer's income and pay the amount of personal income tax. When calculating personal income tax, one should take into account incomes exempted from taxation, provided for in Art. 217 of the Tax Code of the Russian Federation. In addition, the taxable income of the employee is reduced by the amount of the standard tax deductions provided for in Art. 218 of the Tax Code of the Russian Federation.

Tax rates are established by Art. 224 of the Tax Code of the Russian Federation.

If it is impossible to withhold from the employee's salary the calculated amount of the tax of the institution, the employer is obliged, no later than 1 month from the date of the end of the tax period in which the relevant circumstances arose, to inform the taxpayer in writing and tax authority at the place of their registration about the impossibility of withholding tax and the amount of tax.

2. Detentions on executive documents... Are withheld by the employer from wages (or other periodic payments), from the moment of receipt of executive documents. Transfer of withheld money must be made no later than 3 days from the date of payment of wages. Transfer and transfer of funds are made at the expense of the debtor.

Note: An executive document on the collection of periodic payments not exceeding twenty-five thousand rubles may be sent to an organization or another person paying the debtor wages, pension, scholarships and other periodic payments directly by the recoverer.

Deductions from wages initiated by the employer

Article 137 of the Labor Code of the Russian Federation defines a list of cases in which the employer can deduct from the employee's wages.

Withholding is allowed only with the consent of the employee, otherwise this issue can be resolved only in court proceedings. The employer has the right to make a decision on withholding no later than one month from the date of discovery of the fact of excessive payment (Article 137 of the Labor Code of the Russian Federation).

1. Reimbursement of the unearned advance paid to the employee against wages.

Because labor legislation does not provide for the possibility of paying an employee for the time he has not yet worked, the employee is obliged to return the overpaid amounts in the event of:

dismissal;
counting error;
if the individual review body labor disputes the employee was found guilty of failing to comply with labor standards (part 3);
if the salary was overpaid to the employee in connection with his illegal actions (established by the court).

2. Repayment of an unspent and timely not returned advance payment issued in connection with a business trip or transfer to another job in another locality, as well as in other cases.

In cases established by law, the employer may issue a cash advance for travel expenses or for expenses associated with transferring to work in another locality (clause 6.3 of the Bank of Russia Directive No. 3210-U dated March 11, 2014). In turn, the employee is obliged to submit a statement of expenses to the employer, attaching supporting documents no later than 3 working days after the expiration of the period for which the cash was issued, or from the day of going to work.

If the employee does not return the unspent amount of the advance within the specified period, the employer has the right to withhold it from the employee's salary ().

3. Refund of amounts overpaid to an employee due to counting errors, as well as the amounts overpaid to the employee, if the body for the consideration of individual labor disputes (labor dispute commission, court) recognizes the employee's guilt in non-compliance with labor standards (155 of the Labor Code of the Russian Federation) or simple (part 3 of article 157 of the Labor Code of the Russian Federation).

Note: Failure of a computer program is not a counting error.

In these cases, the employer has the right to make a decision on deduction from the employee's wages. In this case, it is necessary to comply with 2 conditions:

withholding must be made no later than one month from the date of the end of the period established for the return of the advance payment, repayment of debt or incorrectly calculated payments;
the employee does not dispute the grounds and amount of the deduction.

Failure to comply with any of the conditions - the collection of funds is possible only in court.

Note: Overpaid wages due to incorrect application of labor laws or other acts containing norms labor law, cannot be reduced by this surplus (part 4 of article 137 of the Labor Code of the Russian Federation).

4. Upon dismissal of an employee before the end of the working year, on account of which he has already received an annual paid vacation, for unworked vacation days. In this option, there are certain nuances depending on the basis for dismissal. Deductions for unworked vacation days are not made if the employee leaves for the following reasons:

reduction in the number or staff of the organization's employees (clause 2 of part 1 of article 81);
liquidation of the organization (clause 1, part 1);
reinstatement of an employee who previously performed this work at work, by decision of the state labor inspectorate or the court (clause 2, part 1);
refusal to transfer to another job that is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws, other regulatory legal acts of the Russian Federation, or the employer does not have an appropriate job (clause 8, part 1 of article 77 of the Labor Code of the Russian Federation);
change of the owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4 of part 1 of article 81 of the Labor Code of the Russian Federation);
recognition as completely incapable of work in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation (clause 5 of part 1 of article 83);
call for military service or a referral to an alternative civil service that replaces it (clause 1 of part 1 of article 83 of the Labor Code of the Russian Federation);
death, recognition as deceased or missing (clause 6 of part 1 of article 83);
the onset of extraordinary circumstances preventing the continuation labor relations(military actions, catastrophes, natural disasters, major accidents, epidemics, etc.), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the corresponding constituent entity of the Russian Federation (clause 7, part 1, article 83).

5. Recovery from the guilty employee of the amount of material damage caused to the employer.

In accordance with the provisions of Art. 241 and 242 of the Labor Code of the Russian Federation, an employee can be held liable. Cases in which an employee can be held liable are established in Art. 243 of the Labor Code of the Russian Federation. The amount of damage recovered by the employee cannot exceed the average monthly earnings (). Collection larger amount possible only by a court decision.

Note: With regard to the recovery of damage caused by the employee, the employer can apply to the court within 1 year (Article 392 of the Labor Code of the Russian Federation).

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Withholding part of the employee's salary is only possible when it is expressly permitted by law.

Let's highlight the following allowable deductions from payment:

1. For mandatory payments stipulated by law (such a payment, first of all, is personal income tax - income tax provided for by the Tax Code of the Russian Federation). It is important to remember: payments to the Pension Fund of the Russian Federation and the CHI fund are not deducted from the salary - they are paid by the employer for the employee, receiving a tax deduction for this.
2. Payments by court decision in the course of enforcement proceedings.
3. Deductions by the employer himself.
4. Retentions initiated by employees.

The latter option occurs when the employee, by his application, gives the employer the authority to carry out transfers of insurance payments, membership fees to the trade union, etc. on behalf of the employees.

In cases where the parent does not voluntarily participate in the costs of the child, according to the Family Code, minor children may be recovered through the courts:

For 1 child - 25% of earnings;
by 2 - 33.3%;
3 or more - 50%.

Alimony is collected not only from salary, but withholding from earnings is the most effective way get at least something. That is why the writ of execution is most often sent to the parent's place of work.

In addition to alimony, payments may be withheld from the employee according to executive documents (sheets, court orders, etc.), which are issued by the court. Foreclosures can be made in connection with the collection through the court of a debt, compensation for damage (including that caused by a crime), as well as on other grounds.

When can an employer withhold a portion of the salary?

According to the law, deductions from the employee's salary can be made by the employer himself.

This is permissible:

If the employee has not worked out the received advance;
if the employee was paid an overstated amount on account of his salary due to a calculation error or in connection with his illegal actions (deception, etc.) established by the court or the body that considered the labor dispute;
upon dismissal in the year for which the employee has already served leave.

In the latter case, withholding does not apply if the employee leaves:

By reduction;
in connection with a change in the owner of the company (for the director, his deputies or the chief accountant);
due to conscription into the army or to alternative service;
due to complete disability;
in connection with the death of the employer-citizen or due to the recognition of the employer by the court as missing.

This list is exhaustive, in no other case the employer can make a deduction.

Moreover, even in this case, he can withhold the salary only under 2 conditions:

Not more than a month has passed;
the employee agrees to the withholding.

Otherwise, it will have to be collected through the court.