What is included in the minimum wage when calculating wages in 2021

What does the minimum wage regulate?

Before considering what the minimum wage is and what it includes in 2020, it is necessary to understand what this indicator is used for.
And also how a fixed minimum wage as a regulatory tool helps the state in ensuring the right of citizens to a specific level of income. The concept of minimum wage implies that the state provides a guarantee of wages to the employee to maintain an acceptable standard of living. The lower limit of the “minimum wage” established by the state is an administrative and economic tool for regulating not only the actual amount of citizens’ incomes, but also socio-economic issues in society.

By establishing a minimum wage, the state guarantees the employee protection from excessively low wages, which are often set by employers. It is also worth considering that federal social payments depend on the minimum wage.

The value of the minimum rate in the Russian Federation according to the Labor Code of the Russian Federation cannot be lower than the subsistence level (LM) (Article 133 of the Labor Code of the Russian Federation). However, this statement has not been followed to date. The “minimum wage” did not keep up with the growth of the monthly salary. Only since January 2021, the minimum wage and minimum wage values ​​have been brought to a single level.

Compliance with the value of the “minimum wage” is mandatory, regardless of the method of adoption. The legislation provides for the establishment of:

• the federal minimum wage, which is adopted by the State Duma;
• subjects of the federation. The minimum wage is established by concluding an agreement between local authorities, representatives of trade union organizations and the association of employers in regions, territories, regions and municipalities. The minimum wage of a constituent entity of the federation should not be set below the national level.

What procedure is used to establish the minimum wage for 2021?

The minimum wage is set at the federal level.
It is equal to the cost of living for the working population, which is calculated based on data from the 2nd quarter of the previous year. This rule has been in effect since May 2021 and is enshrined in the updated version of the law “On Minimum Wages” dated June 19, 2000 No. 82-FZ. For subsequent years, this compliance begins to apply on January 1, but may not always be fulfilled, since if the cost of living decreases in the year taken as a guideline in comparison with the previous year, the minimum wage is not subject to reduction (Article 1 of Law No. 82-FZ) . In such a situation, its value is determined by the cost of living, calculated for the 2nd quarter of the year preceding the previous one (or several previous ones, if the cost of living has been steadily declining over several years).

For 2021, the rule of maintaining the minimum wage will not apply due to the fact that the cost of living based on the results of the 2nd quarter of 2021 is higher than calculated for the 2nd quarter of 2021. It is equal to 12,130 rubles. (Order of the Ministry of Labor of Russia dated August 9, 2019 No. 561n). That is, the federal minimum wage in 2020 compared to that in force in 2019 (11,280 rubles) increased by 850 rubles. — up to 12,130 rub .

The minimum wage affects vacation and sick leave benefits. In the period from 04/01/2020 to 12/31/2020, all benefits are calculated from the minimum wage and their amount does not depend on the insurance period.

EXAMPLE. Calculation of benefits during the coronavirus period from ConsultantPlus: Potapov was on sick leave for 15 days - from 05/21/2020 to 06/04/2020. His insurance experience is 3 years, average daily earnings are 664.38 rubles. The daily allowance, calculated from actual earnings taking into account the insurance period, is 398.63 rubles. (RUB 664.38 x 60%). This is more than the minimum daily benefit in May (391.29 rubles) and less than the minimum in June (404.33 rubles). For 11 days of illness in May... Read the continuation of the example by receiving free trial access to the K+ system.

What is the minimum wage made up of?

The minimum wage for an employee in 2021 is calculated in the amount of 12,130 rubles. What is included in the minimum wage in 2020, and are compensation and incentive payments included in the minimum wage?

Let's find out what payments are included in the minimum wage:

• the main part of the “minimum wage” is the salary, which is assigned to the employee according to his position and qualifications;
• allowances and additional payments that compensate for unfavorable and harmful to health and life-threatening working conditions, as well as other types of compensation that are included in the employment agreement;
• monetary rewards that stimulate employee motivation. These include incentive bonuses, additional allowances and additional payments. Bonuses are paid for achievements and production results in an employee’s work. Bonuses are given to holders of academic degrees, for length of service, etc.

If the salary is calculated only from the salary amount without accruing additional payments, then the salary cannot be set less than the minimum wage. If the salary is still below the “minimum wage,” what is included in the minimum wage when calculating wages in 2021? In this situation, the employer will have to use additional payments to bring the salary rate to the mandatory minimum wage level.

In situations where compensation and incentive payments are established for the employee in addition to the base salary, it is possible that the salary is less than the minimum wage. But the final salary, taking into account all payments, has no right to be set below the minimum payment (Article 133 of the Labor Code of the Russian Federation).

In both cases, from an accrued salary of at least 12,130 rubles, a personal income tax of 13% is withheld from the mercenary. Therefore, in fact, the employee will receive: 12,130 x 13% = 10,553 rubles, which, in fact, contradicts the principle of social protection for workers. In most countries, the minimum wage indicator is removed from the tax field.

It is worth noting that the interpretation of the minimum wage, according to the Labor Code of the Russian Federation, allows employers to manipulate when setting salaries for employees. For employees, even with specific qualifications, a rate is set below the minimum, and then, with the help of additional payments and compensations, they are brought into compliance with the minimum wage. This practice not only distorts the real state of affairs in determining the actual level of the minimum wage, but also the principle of protecting the social and labor rights of workers.

Supplement to minimum wage

If for a month an employee receives, taking into account allowances, an amount greater than or equal to the minimum wage, there will be no questions from the labor inspectorate to the employer. If the employee’s salary, including allowances, is less than the minimum value, an additional payment must be made.

The allowance is made on the basis of the order. This is the basic rule on how to properly pay employees up to the minimum wage in 2021. The order may be made uniform for all employees whose income is lower. Based on this, the accountant will calculate the amount.

Read more: Drawing up a sample order to increase wages for employees

Incentive accruals

Why is incentives included in the minimum wage? The conditions for accrual of incentive payments are set out in local regulations of enterprises and organizations or collective agreements between the employer and employees. If bonuses are paid monthly, then the accrued amounts are constantly added to the minimum payment. However, the payment of incentives is not an obligation assigned to the employer, it is his right.

Are annual, quarterly, or one-time bonuses included in the minimum payment? In practice, this issue caused certain difficulties, since it did not receive an accurate interpretation in the Labor Code of the Russian Federation. Based on the ruling of the Supreme Court of Karelia No. 33-2448/2018 dated 06/05/2018, it was established that such payments are also subject to inclusion in the minimum wage component.

Let's see what other charges are included in the minimum wage. Compensatory additional payments for work on night shifts, weekends and holidays are calculated at increased rates and, accordingly, are accrued above the minimum wage. However, if this work is carried out within the framework of established duties and fixed standards of labor and working hours, then compensation is accrued within the “minimum wage”.

Additional payment for harmfulness refers to a compensation payment, which is determined by the work regime and special working conditions of employees (Article 129 of the Labor Code of the Russian Federation). Since this payment is a component of wages, it is calculated within the limits of the minimum wage.

With a shift work schedule

A shift work schedule itself implies a cumulative accounting of hours, since fluctuations in the use of working time established by the schedule must be taken into account.

Hence the rules for calculating additional payments up to the minimum wage:

1. If the tariff rate is not established, it is calculated by salary and hours of the working week (40-hour, 36-hour, 24-hour).
2. The use of rates and salaries without taking into account the minimum wage during a shift work schedule, as in other cases, is prohibited.
3. If a full-time employee has worked a full month according to the schedule, he will receive full payment according to the hours or salary established taking into account the minimum wage. No additional payment up to the minimum wage is required.
4. If a part-time employee has worked a full month according to the schedule, he will receive proportional payment according to the hours or salary established taking into account the minimum wage. The minimum wage is taken in proportion to its rate (as in the example above).
5. If there is a delay in the schedule through no fault of the employee, he is paid additionally according to the rules of Art. 155 Labor Code of the Russian Federation.
6. All additional payments to the minimum wage must be taken into account within the working week established for the employee, regardless of his actual schedule. The length of the working week cannot be more than 40 hours (Labor Code of the Russian Federation, Article 91). All calculations of tariffs and salaries, including for shift work schedules, must not violate these provisions. If at the end of the billing period there is overtime, it is paid to the employee additionally. This paid processing is not included in the additional payment up to the minimum wage.

Is it legal for a resigned employee, who for three years received wages below the regional minimum wage, to demand that he be paid additional wages to the minimum ?

What accruals are not included in the “minimum wage”

When calculating the minimum wage, those payments that are not related to the payment of the main job, in accordance with established labor standards and working hours, are not taken into account.

Part-time work refers to work performed during free time from primary job responsibilities. The payment will be added beyond the minimum wage if the number of labor hours established by the standard is exceeded (Letter of the Ministry of Labor No. 14-1/OOG-7353). The same principle applies to overtime premiums.

Regional coefficient. This indicator is established for areas with unfavorable and severe climatic conditions (Article 148 of the Labor Code of the Russian Federation) and implies an increased salary. Resolution of the Constitutional Court No. 38 of December 7, 2017 established that regional coefficients and additional payment for each year of work in the Far North and areas equivalent to it are not included in the “minimum wage” component.

This rule applies not only to the minimum wage indicator, but also to the minimum wage. If the minimum wage is already set above the federal minimum wage, northern additional payments are made based on the minimum wage, if it does not include them.

In case of incomplete working month

IMPORTANT! A sample order for additional payment to the salary up to the minimum wage from ConsultantPlus is available at the link

So, we found out that the application (or non-application) of an additional payment to the minimum wage takes into account many factors in practice:

• the regional minimum wage itself;
• actual payments to the employee, including wages and additional payments in accordance with the Labor Code of the Russian Federation;
• his rate, full or partial;
• the established standard of time for the employee.

How do these provisions apply if the month is not fully worked? Let's look at a situation in which an employee worked for less than a full month, for example, due to his dismissal. Let the security guard mentioned earlier in the example have a salary of 20,000.00 rubles, there are no other payments. He works full-time and has a 40-hour work week. The security guard worked only 35 hours on schedule this month and then quit. Let's find out whether in this situation he is entitled to an additional payment up to the minimum wage.

This month he has 143 normal working hours. The salary will be: 20000.00: 143*35 = 4895.10 rubles. Despite the fact that the amount is less than the minimum wage (11,280 rubles), the employee is not entitled to additional payment, since the salary for the full number of hours worked at the rate (143) is greater than the minimum wage (20,000 rubles).

Conclusion

1. An additional payment up to the minimum wage is made if the employee’s wage income for the month is lower than the current minimum wage in the region.
2. At the same time, payment according to the tariff rate, and payment according to the salary, and the work schedule, including shift work, cannot affect the specified norm. Whatever the calculation procedure for the employee is enshrined in the employment contract, LNA, income at a monthly rate below the minimum wage are subject to additional payment. It is produced at the expense of the company and is included in costs for NU purposes.
3. Additional payments for processing, if they are allowed according to the schedule or for other reasons, do not count towards additional payments to the minimum wage.
4. Whether to include additional payments for overtime, holidays, “seasonal” and other payments in the calculation of wages in relation to the additional payment of its amount up to the minimum wage is a question that has not been clearly resolved today. Judicial practice on it is contradictory, which means that the final decision is made by the employer.

Minimum wage and minimum wage - what is the difference

Sometimes the concept of minimum wage (MW) is identified with the minimum wage, but these concepts are not the same thing. The employer must adhere to these values ​​when determining the employee’s earnings.

The minimum wage is accepted by the constituent entities of the Russian Federation not less than the lower limit of the employee’s remuneration, which the employer does not have the right to violate (Article 133.1 of the Labor Code of the Russian Federation). The minimum wage is introduced taking into account the characteristics of the regions and corresponds to:

• socio-economic needs of the constituent entity of the Russian Federation, taking into account the size of the PM;
• mandatory for all categories of employees in a particular region with the exception of employees of federal structures;
• the minimum wage indicator cannot be used below the federal minimum wage.

The adoption of the minimum wage is not mandatory for the constituent entities of the Russian Federation; in calculating wages, they have the right to adhere to the federal minimum wage.

Employer's liability

According to Art. 133 of the Labor Code of the Russian Federation, the employer does not have the right to pay employees a salary below the minimum wage. Compliance with legislation is monitored by:

• representatives of the Tax Service;
• employees of the Social Insurance Fund;
• prosecutors;
• Labor Inspectorate specialists.

If this rule is violated, the company will be fined 30,000–50,000 rubles. The employer may be subject to a sanction - deprivation of the right to occupy management positions for 3 months. If the violation is repeated, the punishment will be a ban on carrying out activities for 3 years.

Procedure for accepting minimum wage

The minimum wage indicator is introduced based on the signing of an agreement by a tripartite commission between representatives:

• local authorities;
• employer communities;
• representatives of the interests of trade union workers.

As a result of negotiations, a decision is made to accept the agreement, which is published in an official source. After reading the agreement, employers either accept the terms of the document or have the right to refuse it within thirty days from the date of publication. In case of refusal, a written reasoned refusal is drawn up with documentary evidence of each argument.

The commission considers the refusal of the employer who is invited to the meeting. The employer has no right not to attend a meeting of the collegial body.

Changes in the Moscow minimum wage

Unlike the whole country, the minimum wage in Moscow in 2021 is much higher, and it is allowed to increase it throughout the year. For example, in 2019 the indicator changed three times: January 1, July 1 and October 1. And this is normal, since the figures are adjusted depending on the cost of living, and it is reviewed quarterly. This provision is contained in the Moscow Tripartite Agreement for 2019–2021. between the Moscow government, Moscow trade union associations and Moscow employers' associations dated September 19, 2018.

This is interesting: individual entrepreneurs without employees are entitled to assistance from the state and unemployment benefits.