The employee has the right to timely and full payment wages in accordance with their qualifications, the complexity of the work, the quantity and quality of the work performed (paragraph 5, part 1, article 21 of the Labor Code of the Russian Federation). What if wages are not paid on time?
We will talk about the right to suspend work due to non-payment of wages in our material.
Suspension of work due to wage arrears
If the payment of wages to an employee is delayed by more than 15 calendar days, the employee has the right to suspend work until the full payment of the debt. The only duty of the employee in this case is to notify the employer in writing of decision suspend work. In what form to do this, the Labor Code of the Russian Federation does not say. This means that the form of the warning can be arbitrary. It is important at the same time to have proof that the employer received a notice of suspension, because otherwise absenteeism can be regarded as absenteeism.
It should also be borne in mind that this way of protecting one's own labor rights, as a suspension of work, is not available to all employees.
Thus, the suspension of work is not allowed:
- during periods of introduction of martial law, state of emergency or special measures in accordance with the legislation on emergency situations;
- in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the defense of the country and the security of the state, emergency rescue, search and rescue, fire fighting, work to prevent or eliminate natural disasters and emergency situations, in law enforcement agencies;
- civil servants;
- in organizations directly serving especially dangerous types of production, equipment;
- employees whose labor duties include the performance of work directly related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency medical care stations).
Pay during the suspension
Despite the fact that the employee does not fulfill his duties, even more so, during the suspension he has the right to be absent from work, the forced leave of such an employee will be paid. For the period of suspension of work, the employer retains the average salary for such an employee (
To date, the current legislation has already been developed sufficiently to ensure the protection of the legitimate rights of workers in various conditions.
First of all, the protection of the rights of workers is provided in case of non-payment of their wages, but in fact, many citizens do not know how to act in such situations and how they can hold their employers accountable.
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In particular, not everyone knows that the law even provides for the suspension of work due to non-payment of salaries to company employees.
The right of an employee according to the norms of the Labor Code of the Russian Federation
The rules set out in Art. 142 of the Labor Code, provide for, in the event of a missed deadline for accruing wages for more than 15 days, the opportunity for employees to completely refuse to visit their work until the unpaid amount is returned.
Stopping work due to the lack of payroll can be called one of the forms of self-defense of labor rights provided for by the current legislation, which is spelled out in article 379 of the Labor Code.
At the same time, as indicated Supreme Court, the employee has the right to stop his activities, regardless of what the non-payment of wages is connected with - the fault of the employer or any other circumstances.
It is worth noting that for the entire period of non-payment of the due salary, the employee not only retains the original amount of salary, but, in addition, must also receive an additional payment for the delay, the amount of which is 1/300 of the accepted refinancing rate.
When downtime is not allowed
In accordance with the current legislation, if the employer has not paid only a certain part of the salary, then in this case the employee has no right to take advantage of the opportunity not to go to work. workplace because the above article says that given right provided only in a situation where the salary is delayed in full.
In addition, the employee does not have the right to stop his work in the absence of payment of interest established in case of ignoring the accepted terms for calculating wages, since the indicated interest, which is prescribed in Article 236 of the Labor Code, is not included in the salary itself, as a result of which they cannot be considered the employer's debt.
Not knowing about this feature, many employees do not go to the workplace in case of payment of wages in part or with a delay in interest provided for ignoring the terms of payment of wages, and therefore in the future they are simply dismissed due to absenteeism. To avoid such consequences, it is best to remember these important features in advance.
In addition, the suspension of work is not provided for:
- during a state of emergency or martial law, as well as any special measures;
- for employees of military organizations or the Armed Forces of the Russian Federation and other formations that are engaged in ensuring the security of the state;
- for employees of state bodies;
- for employees of companies operating with the use of especially hazardous types of equipment;
- for employees who are engaged in the performance of work directly related to ensuring the life of citizens.
Calculation of average earnings
Calculation of the average earnings of an employee who stops his labor activity due to delayed wages, is carried out in accordance with the provisions of Article 139 of the Labor Code, as well as the provisions established in accordance with Government Decree No. 922, which was published on 12/24/07.
During the settlement process, any payments that are provided for by the payment system used in the company are taken into account, and according to general rule, it is customary to maintain a unified procedure for its calculation, which provides for accounting for the actually credited salary within 12 months that precede the moment of payment.
In addition, in accordance with the norms specified in Article 236 of the Labor Code, the employee has the right to demand additional compensation for the delay.
Application for suspension of work due to non-payment of wages
In order not to go to work, after 15 days of salary delay in without fail submit a written statement to the authorities indicating this intention, and it is best to immediately write a statement addressed to the head of the company.
In the absence of this document, the manager has the right to decide that the absence of an employee at the workplace is a direct violation of the work schedule, and is not associated with a delay in wages.
If desired, the application can be renamed into a notice or a notice, and the heading simply indicates "On the suspension of work." When drawing up the form of this document, it is mandatory to indicate the date of its execution, as well as information about the applicant and addressee (head of the company).
In the text of the application, the following data must be indicated:
- normative document, in accordance with which the date of payroll is established;
- the period in which wages must be accrued;
- the total number of days for which the payment of wages was delayed;
- an article of the Labor Code, according to which citizens are given the opportunity not to go to work in case of non-payment of wages;
- intention to stop their work activities due to non-payment of funds by the employer;
- the date from which the employee ceases to go to his workplace.
The application must be signed by the applicant himself and handed over personally at the place of destination.
What actions can an employee take?
In addition to suspending their activities, an employee can file a special complaint with the labor inspectorate, and this is the easiest way to influence the employer to pay wages. In this case, the complaint is drawn up in a free form, and there are no serious requirements for this document - it is enough to indicate your own full name, registration address and signature.
In case of violation of the established norms labor law the employer can receive a fine of up to 50,000 rubles, and in especially difficult situations, even criminal liability measures may be applied to him, and therefore filing this appeal is often enough to pay salaries.
You can also apply to the district court located at the place of registration of the employer, statement of claim. At the same time, it is worth noting the fact that the plaintiff in this situation is completely exempt from the need to pay the state fee, and it must be submitted in three copies, one of which is immediately returned to the applicant with a note of delivery.
The deadline for issuing such an application in accordance with Labor Code is three months.
Arbitrage practice
For questions that arise in judicial practice, the Supreme Court gave its own explanations. In particular, it is stated that, in accordance with Article 142 of the Labor Code, if a delay in wages for a period of more than 15 days is discovered, the employee has the right to stop work until the specified amount is paid to him, and the only exception to this rule are those cases listed in this article. In this case, the employee must submit a notice in writing.
Taking into account the generally recognized principles and norms of international law, as well as key features the current Constitution, one of the basic principles legal regulation relations between employees and their employers is to ensure the right of each employee to timely receive wages in full.
The right to refuse to perform job duties is a forced measure, which is provided for by the current legislation in order to stimulate the employer to pay wages as soon as possible.
At the same time, as stated in Article 236 of the Labor Code, in the event of a delay in wages, the employer will have to calculate it without fail, together with interest, in the amount determined by this article, and the amount of monetary compensation, if desired, can be increased by a collective agreement.
Employer's responsibility
The liability of the employer lies in the fact that the reimbursement of debts to employees is carried out with an additional payment of interest, the amount of which is 1/300 of the accepted central bank refinancing rates. In this case, this amount is charged for each day of delay, starting from the one that comes after the due date of payment and ending with the day of actual settlement.
In some situations, the average wage is retained for the duration of the suspension of work for the employee. One such case is the suspension of work due to delayed wages. In the article, we will consider how to calculate the average earnings for the time of suspension of work in the event of such a situation.
Wage arrears
Important! From the 16th day of delay in wages, the employee has the right not to go to work by notifying the employer in writing.
Compensation for salary delay
Important! The key rate is taken equal to the period of time for which compensation is accrued.
According to labor legislation (236 of the Labor Code of the Russian Federation), there is a minimum amount of compensation payable to employees. This amount can be set higher and approved in such company documents as labor, collective agreement or in the local normative act. Compensation is paid simultaneously with the payment of salary arrears.
Compensation example
On December 5, 2017, Continent LLC must pay Petrova O.P. salary in the amount of 20,000 rubles. On this day, Petrova did not receive the money, and the salary was paid only on December 15, 2017. The delay in salary occurred for 10 days, in accordance with this, we will calculate the compensation.
The key rate for this period is 8.25%.
20,000 x 8.25% / 300 x 10 = 55 rubles
Who does not have the right to suspend work
Employees of the Armed Forces of the Russian Federation, military and paramilitary formations, employees of emergency rescue and search and rescue services and other organizations, in accordance with Article 142 of the Labor Code of the Russian Federation.
Suspension and downtime
Do not confuse such two concepts as the suspension of work and downtime. Downtime is understood as temporary suspension for economic, technical, technological or organizational reasons. Downtime is paid due to the fault of the employer in a slightly different way, namely, in the amount of at least 2/3 of the average salary of the employee. If salary is delayed, this period is paid at 100% rate.
Consider a situation where these two periods coincide, for example, employees announced the suspension of work during the downtime period. Disagreements between employees and the employer may arise due to the amount of payment during this period. If downtime and suspension coincide, then how much should the average wage be paid to the employee: 100% or only 2/3? In this case, it may be necessary to sort it out in court, since it will depend on whether the employees continued to be at work during the downtime or not.
Average earnings at the time of suspension of work
Having received a notice from the employer, which indicates the readiness to pay wages, the employee is obliged to return to work the next day. If the employee ignores the employer's message and does not go to work, then he can be fired for absenteeism on legal grounds - paragraphs. "a", p 6, part 1 article 81 of the Labor Code of the Russian Federation.
The procedure for calculating the average earnings for this period of time is as follows. Initially, the billing period is determined and then the amount of payments for this period, which will be included in the calculation.
The settlement period in this case is 12 months. Months are taken as calendar months, starting from the one that precedes the month for which the calculation is made. For example, if the suspension was in December 2017, then the billing period will be from December 2016 to November 2017. The employer has the right to change for another period. In this case, it is important to consider the following conditions:
- The amount received in the calculation taking into account a different period should not be lower than the amount received in the calculation in the usual way;
- A different settlement period must be fixed in one of the following documents: in a local regulatory act or a collective agreement.
Average earnings for the period of suspension will be calculated as follows: average daily earnings times the days of suspension.
The average daily earnings will be equal to the accrued amounts for the billing period, divided by the number of days actually worked by the employee.
Example of calculating average earnings
In the company "Continent" LLC, the day of payment of wages is November 30, 2017. On December 15, Petrova wrote a statement about the suspension of work and did not come to work. On December 24, 2017, Petrova received a notification from her employer that she was ready to pay her salary on December 25, 2017. The next day, Petrova went to work, and Continent LLC calculated her due average salary:
Petrova's salary is 40,000 rubles, Petrova worked in full from December 1, 2016 to November 30, 2017.
The average daily income will be:
(40,000 x 12) / 12 / 29.3 = 1,365.19 rubles
Now let's calculate the payment for the suspension of work:
1,365.19 x 10 = 13,651.90 rubles.
Thus, Petrova was paid the amount of 33,751.90 rubles, consisting of:
Salaries - 20,000 rubles;
The average salary for the suspension of work - 13,751.90 rubles;
In addition, the employer accrued compensation to Petrova for each day of delay in money.
Here you can download for free a sample application for termination of work due to delayed wages (word) - a written notice to the employer of his intention to exercise the right to suspend work due to non-payment of wages granted to him by the Labor Code of the Russian Federation (Article 142 of the Labor Code of the Russian Federation).
An employee may exercise the right to stop working if the employer delays wages for more than 15 days. Starting from the 16th day, you can not go to your workplace. A written communication to the authorities about your intention is mandatory. It is convenient to write an application addressed to the director of the company.
If such a statement is not provided by the employee, then the employer has the right to decide that absenteeism is not due to a delay in wages, but to a violation of the labor schedule. For absenteeism, an employee can be fired at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). As a result, instead of defending their rights to the employer, the employee will be fired for absenteeism.
Therefore, it is imperative to write a statement, and make sure that it reaches the head. It is best to draw up two identical application samples, give the first to the organization, and keep the second, while you need to get a mark on the acceptance of the application. So the employee will have confirmation that he notified the employer in writing about the suspension of work due to delayed payment of wages.
A sample application for suspension of work due to non-payment of wages for more than 15 days can be found at the link at the bottom of the article.
If the employer does not pay wages, then you should complain to the relevant authorities. For starters, you can contact the labor inspectorate, if this does not help, then the prosecutor's office.
If the salary has not been paid and the delay is long, then you can write a statement of claim to the court to recover the debt from the employer -. You can read more about where to complain to an employee in.
How to write an application correctly?
The statement can also be called by another name - notification, notification. As a title, you can specify - "on the suspension of work."
The letterhead of the document must contain the date of writing, as well as information about the addressee and the applicant. The application should be addressed to the head of the organization.
The following information should be included in the suspension notice:
- a regulatory document establishing the dates for the payment of salaries;
- terms of payment of wages;
- salary delay period - number of days;
- article of the Labor Code of the Russian Federation, giving the right to suspend work due to non-payment of wages;
- intention to suspend work due to non-payment of funds by the employer;
- the date from which the employee ceases work.
The application is signed by the applicant and handed over to the place of destination.
The article tells how to write an application for the suspension of work due to non-payment of wages, it explains how to write correct pattern document.
If the organization considers it possible to delay payments for fifteen calendar days, absenteeism due to non-payment of wages will be in accordance with the law.
Until the director pays, you can not go to work, and this will not be considered absenteeism.
Important! A suspension notice must be sent. After all, the employee misses working days due to delayed payments. Work stops until the manager transfers the entire amount in full (Article 142 of the Labor Code).
You need to go to work only after employees are notified of their readiness to pay all the amounts due.
How to notify the manager
It is necessary to inform about the suspension of work in connection with violation of labor legislation in writing.
2 ways to send notification:
- send a registered letter with notification;
- personally hand over to the secretary or specialist personnel service application for termination of work due to non-payment of labor. It is important to make sure that the secretary affixes the incoming stamp and registers the document. Thus, you can protect yourself from unfounded accusations.
If you ignore the procedure, then the employee may be declared a truant and fired. Will have to writeresignation letter. Therefore, when the delay lasts fifteen days, on the sixteenth day you can refuse to perform official duties.
3 rules for making an application:
- Indicate in the "header" of the document the surname, name and patronymic of the specialist, the position he occupies. Write the surname and initials of the head, and the name of the company.
- Next, warn about absence from the office until the earnings are transferred. Refer to Art. 142 of the Labor Code of the Russian Federation.
- Put a signature and date.
Application for suspension of work due to non-payment of salaries to employees - the sample does not have a strict form. However approximate form The form should contain clear indications that the employee is not just skipping work, but protecting his rights.
When to go to work
Perhaps the authorities decide to pay off the debt to the employees. Then the next day after receiving the notification, you need to resume the performance of official duties. Oral promises can not be trusted. After all, only a written notice has legal force.
Who must continue to work
Not all professionals have the right to refuse their duties. There are categories that will have to continue to work.
- employees of public authorities;
- specialists on whose work people's lives depend: water supply, heating, communications, ambulance;
- persons serving in especially hazardous industries;
- employees of military formations;
- police officers;
- specialists responsible for the security of the state.
Nuances
Often problems occur despite the fact that employees have notified the authorities in compliance with the form. After all, you can always find reasons to fire a person, there would be a desire. To protect their interests, people have to file lawsuits. Often it is necessary to go through several instances to find justice. There is another body that is ready to protect the rights of workers - this is the labor inspectorate. The task of inspectors is to search for violations and impose sanctions on companies.
