Yulia Zhizherina, business consultant on personnel management and labor law, tells how to prepare salary documents to avoid fines.
Employers often make mistakes when describing wage conditions, which can lead to unpleasant consequences.
For incorrectly indicating the terms of remuneration in an employment contract, the employer may face administrative liability under Part 4 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of a fine on officials in the amount of 5,000 to 10,000 rubles; for legal entities - from 50,000 to 100,000 rubles.
If the employer incorrectly prescribed wage standards in local regulations, he may be held liable under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of a fine on officials in the amount of 1,000 to 5,000 rubles; for legal entities - from 30,000 to 50,000 rubles.
If working conditions are incorrectly reflected in the employment contract or local regulations, there is also a risk of a dispute with the employee, who, to protect his rights, can appeal to both supervisory authorities and the court.
If an employee contacts supervisory authorities, the employer will in any case face an inspection. If the employee goes to court, then if a decision is made in his favor, he can also recover moral damages from the employer.
To avoid these risks, spell out the terms of remuneration correctly in all documents.
Features of setting wages for employees
When applying for a job, a citizen must be informed about the rules by which remuneration for work is determined. An employment contract is used to consolidate the main provisions not only verbally, but also in writing. The document describes in detail the system used for the employee and the general formation procedure.
The main elements of wages are:
- incentive payments that make up the bonus system;
- allowances;
- salary or tariff rate.
The main thing is to take into account that equal work is paid equally. This means that employees in the same position should receive the same remuneration. Do not forget about the concept of minimum wage - the minimum wage. The salary cannot be lower than this indicator.
Some regions and industries have the right to increase the minimum wage for employees. It is important that any changes are documented in official documents. If there is no documentation, they are guided by the generally accepted minimum wage.
Calculation procedure
How are official salaries determined?
Even taking into account the factors listed above, establishing specific salary ranges is quite labor-intensive and complex. Especially in organizations that have a multi-stage management system. Typically, in order to distribute salaries by rank, some preparatory steps are required.
First you need to determine the general level of the wage fund that the company allocates to its employees. From this fund, you then need (usually this is done by calculation) to allocate an amount of money on an average monthly basis, which will need to be paid to employees as official salaries.
About the procedure for paying salaries
When paying rewards, you must go through the following stages:
- The total amount of earnings is calculated based on the rates and salaries that apply to the enterprise.
- Compensation and incentive payments are added.
- Next, deductions are made from wages.
Typically, income tax is used, referred to as personal income tax. The employer acts as a tax agent. The tax is calculated depending on the rate that is currently in effect. Be sure to take into account the deductions due to a particular employee. A reduction is permissible for the required bonuses, for calculation errors made earlier. The same applies to compensation from an employee if he committed any guilty actions.
Is it possible to reduce an employee's salary due to coronavirus?
Many enterprises have suffered financial difficulties due to restrictions imposed by the President of the Russian Federation and regional authorities related to the spread of coronavirus infection. But this is not a reason to reduce employees' salaries. The President drew attention to this in his address, and Rostrud and the Ministry of Labor provided explanations several times.
According to the explanations of these departments, all employees must receive wages in the same amount as if they had worked a full working month: with all bonuses and allowances provided for in the labor agreement. Thus, even in the case of coronavirus, it is possible to reduce an employee’s wages only by agreement.
Find out whether it is possible to reduce wages by reducing an employee's working hours here.
About different forms of remuneration
Wages are calculated depending on the current agreement and the system that works at a particular enterprise. Economic working conditions and personal preferences of the company owner become the main guidelines when making a decision. The main thing is that the system does not contradict the current Labor Code, otherwise it will be automatically declared invalid.
Time-based and piecework are the key systems that are most often used in practice. The time-based option is used if it is not possible to establish a standardized schedule, or there is no need for it. Then it makes more sense to pay not for the amount of work, but for the time.
This type of salary is most often awarded to representatives of the following professions:
- administrative staff;
- secretaries;
- marketers;
- lawyers.
A day or a month can become reporting periods, although management has the right to choose other options. If the time worked is not complete, then remuneration is paid only for the period during which work duties were performed.
The time-based bonus form is also practiced by many enterprises. A bonus is added to the basic remuneration for those who perform quality work.
In production or in the service sector, preference may be given to piecework payment. In this case, it is more profitable for the manager to pay exactly the amount of work that was performed.
Let's sum it up
- Changing an employee's salary upward is not a difficult task for a personnel officer or accountant: in this case, you only need to prepare a few documents.
- A salary reduction can only be made by agreement with the employee.
- At the initiative of the employer, the salary can be adjusted downward due to organizational or technological changes in the work. In this case, it is necessary to notify the employee 2 months before the start of payments of the reduced salary. In addition, you need to pay benefits for the period of employment.
- Salary reductions due to coronavirus are unacceptable.
Source
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About additional payments and bonuses, allowances
Additional payments and salary supplements are also taken into account when wages are checked for compliance with the minimum wage. If an employee has fulfilled all the norms for a month, his remuneration cannot be lower than this indicator.
The salary, according to current standards, may include the following components:
- basic remuneration for work, depending on tariffs or salaries;
- compensation payments;
- incentive transfers.
There are no other special rules in this regard. The same provisions apply to the regional minimum wage and comparison of wages with this indicator.
How to use the calculator
Instructions for using the salary calculator
- Enter the monthly salary amount, number of days worked and month for salary calculation.
- Click "CALCULATE". The result will show the total accrued salary amount, how much of the salary will be personal income tax and the amount of salary minus personal income tax.
Is something not working? Having a problem? Take advantage of feedback
A salary calculator based on salary, including for an incomplete month worked, is a convenient service designed both for officials who calculate wages and for employees themselves who want to check the accuracy of calculations.
When working part-time, part-time
The minimum wage is guaranteed to those who have worked the full standard for a whole month. Therefore, part-time and part-time employees are allowed to pay remuneration less than this parameter. In this case, remuneration may depend either on the total amount of work or on how much time is actually worked.
The full salary is set for those who work part-time. This procedure complies with the provisions of Article 57 of the Labor Code of the Russian Federation. According to this article, contracts and local acts indicate the full amount of salary at fully established standards.
When working part-time, the monthly quota is not generated. Therefore, only part of the salary specified in the agreement drawn up with employees is subject to payment. The corresponding condition is formed in written documents related to employment.
Basic calculation formula
The basic formula for calculating wages based on salary is:
Using the basic formula, you can calculate the salary if in the billing month the employee does not receive bonuses and other payments in addition to the salary.
We will demonstrate the calculation of salary based on an example.
Employees of Kornet LLC work on a five-day basis. The salary regulations of Kornet LLC indicate that the company's employees are paid a monthly bonus in the amount of 15% of the salary. But there is a limitation: the bonus is not paid if the employee did not fulfill the production plan in the billing month and/or received a disciplinary sanction.
Janitor Samoilov P.G. received a reprimand in January 2021 for absenteeism. As a result, out of 17 working days in January (according to the production calendar for a five-day working week), he worked only 16. His salary, according to the staffing schedule approved for 2021, is 16,250 rubles.
Considering that in the billing month P. G. Samoilov is not paid any additional amounts of an incentive or compensation nature, the basic formula can be used to calculate wages:
Salary = 16,250 rub. / 17 days × 16 days = 15,294.12 rub.
In this amount, P. G. Samoilov’s salary will be accrued for January 2020.
The basic formula cannot always be used. Typically, company employees are paid not in the amount of a “bare” salary, but with additional payments. Then the formula for calculating wages is used differently.
Salary in foreign currency
Situation: is it possible to determine the amount of an employee’s salary in foreign currency or conventional units (cu)?
No you can not.
Salaries can only be issued in rubles (Article 131 of the Labor Code of the Russian Federation). Payment of wages in Russia in foreign currency and conventional units is not provided for by current legislation.
Therefore, in employment contracts with employees, also set salaries in rubles. If you specify in employment contracts a salary in the ruble equivalent of an amount in foreign currency or in conventional units, then this will not fully comply with labor legislation. If the exchange rate depreciates, the rights of employees will be violated. And this is fraught with administrative fines.
Rostrud warns about this in letter dated November 20, 2015 No. 2631-6-1.
CEO
Situation: can the general director of an LLC, appointed to the position by the general meeting of participants, increase his salary by his own order?
No, he can not.
The CEO of an organization has a dual status. He is both an employee who has a labor relationship with the organization and the sole executive body of the organization (Article 40 of the Law of February 8, 1998 No. 14-FZ). As a leader, he resolves all economic and management issues of the organization. As an employee, he is obliged to act within the framework of the employment contract and comply with the Labor Regulations (Article 275 of the Labor Code of the Russian Federation).
The salary of the general director is a mandatory condition of the employment contract (Part 2 of Article 57 of the Labor Code of the Russian Federation). Such conditions can be changed only by agreement of the parties to the agreement (Article 72 of the Labor Code of the Russian Federation).
In an LLC, the employment contract on behalf of the organization must be signed by the person who chaired the general meeting of participants, where the general director was elected, or by the company participant who is authorized by the decision of the general meeting. Therefore, there are only two ways to increase the CEO’s salary:
- at the general meeting of the company's participants. The supporting document in this case will be the minutes of the general meeting of participants;
- by decision of an authorized participant of the company. He can stipulate new conditions for remuneration of the general director in an additional agreement to the employment contract.
This procedure is provided for in Article 40 of the Law of February 8, 1998 No. 14-FZ.
Responsibility for wages below the minimum wage
For payment of wages below the minimum wage, administrative and criminal liability is provided.
An entrepreneur or head of an organization may be fined in the amount of 1,000 to 5,000 rubles, and an organization – from 30,000 to 50,000 rubles. (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
For a repeated violation, the head of the organization may be fined from 10,000 to 20,000 rubles. or disqualify for a period of one to three years. The fine for an entrepreneur in this case ranges from 10,000 to 20,000 rubles, for an organization - from 50,000 to 70,000 rubles. (Part 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation).
In addition, such a violation can be qualified as a violation or failure to fulfill obligations under a collective agreement. In this case, the head of the organization may be given a warning or fined in the amount of 3,000 to 5,000 rubles. Such penalties are provided for in Article 5.31 of the Code of the Russian Federation on Administrative Offences.
The issue of administrative punishment of violators is considered by the labor inspectorate or the court (Parts 1, 2 of Article 23.1, 23.12 of the Code of Administrative Offenses of the Russian Federation).
An employee whose salary was less than the minimum wage may demand:
- additional payment for the entire period of work;
- compensation for delay in payment.
This conclusion can be made on the basis of Article 236 of the Labor Code of the Russian Federation.
If the organization does not comply with this requirement, the employee may file a complaint with the labor inspectorate. Labor inspectors can also find out about violations of the law during an inspection.
According to Article 122 of the Tax Code of the Russian Federation (for non-payment of taxes), an organization will not be fined for paying wages below the minimum wage. However, having identified such a violation, tax inspectors can report it to Rostrud. This was stated in the letter of the Federal Tax Service of Russia dated March 19, 2009 No. 3-6-04/66.
In addition, criminal liability is provided for the head of an organization for paying wages below the minimum wage for more than two months.
Situation: is it necessary to take into account additional payments and allowances to an employee’s salary when checking whether his salary corresponds to the minimum wage?
Yes need.
The salary of an employee who has worked the standard amount of time for a month and fulfilled labor standards (job duties) should not be less than the minimum wage (minimum wage). The federal minimum wage from January 1, 2021 is 6,204 rubles. per month (Article 133 of the Labor Code of the Russian Federation, Article 1 of the Law of December 14, 2015 No. 376-FZ).
In this case, the composition of the salary (wages) includes the following elements:
- the employee’s basic salary at the tariff rate (salary) - remuneration for work;
- compensation payments (for example, additional payments and allowances for work in conditions deviating from normal, etc.);
- incentive payments (bonuses and other incentive payments).
This is stated in Part 1 of Article 129 of the Labor Code of the Russian Federation.
Based on this definition of salary (wages), we can conclude that when checking the compliance of the salary (wages) of an employee with the minimum wage, it is necessary to take into account any additional payments and allowances to the salary. That is, the total amount of remuneration is taken (including remuneration for labor, all additional payments and allowances, incentive payments without exception), and this amount is compared with the minimum wage.
This position is confirmed by the Ministry of Finance of Russia in letter dated November 24, 2009 No. 03-03-06/1/768, as well as the Supreme Court of the Russian Federation in rulings dated July 23, 2010 No. 75-B10-2, dated May 21, 2010. No. 8-B10-2 and dated September 10, 2008 No. 83-G08-11.
Apply similar rules when checking whether an employee’s salary corresponds to the regional minimum salary. The Labor Code of the Russian Federation does not establish any special rules in this regard.
Attention: regional coefficients and bonuses in organizations located in the regions of the Far North and equivalent areas are not taken into account when checking the compliance of an employee’s salary with the minimum wage.
Legislation obliges employers to compensate for unfavorable factors associated with working in such areas (Articles 315, 316 and 317 of the Labor Code of the Russian Federation). Remuneration for work in the Far North and equivalent areas must be higher than remuneration for identical work performed in normal climatic conditions. Therefore, the salary of employees of organizations located in the Far North and equivalent areas should be determined in an amount not less than the minimum wage. After which the regional coefficient and a bonus for length of service must be added to it.
This approach is confirmed by judicial practice (section 1 of the review of the Supreme Court of the Russian Federation dated February 26, 2014, rulings of the Supreme Court of the Russian Federation dated October 7, 2011 No. 3-B11-31, dated June 24, 2011 No. 3-B11-16, etc. .d.).
Accordingly, other actions of the employer will be considered a violation of the rights of employees.
Situation: is it necessary to review employee salaries if the regional minimum wage has become higher than the federal minimum wage?
Yes, it is necessary if the organization has joined the regional minimum wage agreement.
In a constituent entity of the Russian Federation, the minimum wage may be established by regional agreement. The development of the project and the conclusion of this agreement are carried out by a tripartite commission for the regulation of social and labor relations (Parts 1, 4 and 6 of Article 133.1 of the Labor Code of the Russian Federation).
It is necessary to review employee salaries only if an increased minimum salary is established by a regional agreement. This is stated in Article 133.1 of the Labor Code of the Russian Federation.
When establishing the regional minimum wage, regional authorities are guided by the cost of living of the working population in the region (Part 3 of Article 133.1 of the Labor Code of the Russian Federation). At the same time, the regional minimum wage does not apply to organizations that are financed from the federal budget (Part 2 of Article 133.1 of the Labor Code of the Russian Federation).
All organizations in the region can join the regional minimum wage agreement, even if they did not participate in its conclusion. A proposal to join a regional agreement is officially published along with the text of the agreement. This is stated in Part 7 of Article 133.1 of the Labor Code of the Russian Federation. If within 30 calendar days the organization does not send a written reasoned refusal, it is considered that it agrees with the regional agreement. Consequently, the organization will be obliged, from the moment the regional agreement is officially published, to establish a monthly salary for employees not lower than the regional minimum wage. If the organization decides not to join the agreement, it sends a written refusal to the subject of the Russian Federation. A copy of the refusal is sent to the territorial branch of Rostrud. This procedure is established in parts 8–11 of Article 133.1 of the Labor Code of the Russian Federation.
Situation: what is the minimum salary for part-time workers and employees (including minors) who work part-time?
The minimum wage established by federal legislation is guaranteed to those who have worked the full standard of working time in a month (Part 3 of Article 133 of the Labor Code of the Russian Federation). Consequently, part-time workers and part-time employees can be paid less than the minimum wage (Articles 285, 93 of the Labor Code of the Russian Federation).
Minor employees also receive wages in proportion to the time worked, although the employer can, on its own initiative, establish additional payments to their wages (Article 271 of the Labor Code of the Russian Federation). Thus, minor employees working part-time can be paid a salary below the minimum wage.
A similar conclusion was made in the letter of the Federal Tax Service of Russia dated August 31, 2010 No. ШС-37-3/10304 (prepared on the basis of official explanations from Rostrud sent to the tax service).
An example of calculating wages for a minor employee with a shortened work week
The Alpha organization employs a 17-year-old employee who combines work and study. In 2021, the salary for this employee’s position with a full work week (35 hours per week) is equal to the minimum wage, that is, 6,204 rubles. The employee works 17.5 hours per week. That is, the production rate is 50 percent. Accordingly, the salary should be half as much. Therefore, Alpha pays him a salary of 3,102 rubles.
Internal part-time worker
Situation: is it possible to set a salary for an internal part-time worker in the amount of more than 50 percent of the salary of the main employee?
Yes, you can.
The Labor Code of the Russian Federation does not prohibit this. It only says that remuneration for the work of an internal part-time worker should be made in proportion to the time worked, output or on other conditions determined by the employment contract (Part 1 of Article 285 of the Labor Code of the Russian Federation). The application of such other conditions is confirmed by arbitration practice (see, for example, the resolution of the FAS of the Central District dated June 5, 2008 No. A23-2468/07A-18-134).
Situation: how to correctly set the salary of an internal part-time worker in order to comply with the minimum wage requirement?
Set the salary for the main place of work and part-time work separately.
The salary at the main place of work must be strictly not lower than the minimum wage. This is a general rule for a situation where an employee has fulfilled the established norm for a month (Part 3 of Article 133 of the Labor Code of the Russian Federation). When checking whether such a salary corresponds to the minimum wage, do not take part-time salaries into account.
As for part-time wages, there is no direct requirement in labor legislation that its amount should be no less than the minimum wage. But in order to avoid conflicts with employees, we recommend that in this case, too, focus on the minimum value - in proportion to the time worked.
An example of setting a salary for an internal part-time worker
E.V. Ivanova was hired as a full-time cleaner. The minimum wage in 2021 is 6,204 rubles. This means that Ivanova’s salary at her main place of work should be no less than this amount.
In addition to her main duties as a cleaner, Ivanova works as a courier at 0.5 rate. The minimum salary for a courier position, based on time worked, should be 3,102 rubles. (RUB 6,204: 2).
Taxes from 1 minimum wage
If an employee’s salary is set at 1 minimum wage, it is subject to personal income tax, as well as contributions to compulsory pension (social, medical) insurance and insurance against industrial accidents and occupational diseases on a general basis. The legislation does not provide any exceptions for a salary of 1 minimum wage.
This conclusion is confirmed:
- in relation to personal income tax - Articles 210 and 217 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated February 15, 2012 No. ED-2-3/111;
- in relation to contributions to compulsory pension (social, medical) insurance - Articles 8 and 9 of the Law of July 24, 2009 No. 212-FZ;
- in relation to contributions for insurance against industrial accidents and occupational diseases - Articles 20.1 and 20.2 of the Law of July 24, 1998 No. 125-FZ.
