The situation is really difficult. You need to understand how the calculation and surcharge are made. What happens if you break the law?
First of all, you should turn to the regulatory framework. The following points should be highlighted here.
- The employer is obliged to keep the employee his average earnings during the vacation period. In no case should it be lower.
- The calculation is carried out in accordance with Article 139 of the Labor Code of the Russian Federation and other documentation. Accountants are very familiar with this procedure.
- In addition, at the end of 2021, the Government of the Russian Federation approved that the average monthly calculated earnings should not be lower than the minimum wage.
Thus, during furlough, you cannot pay an employee a salary that is below the minimum wage. But the legislation in this regard is imperfect. In particular, it does not indicate the mechanism by which an accountant should act if the average salary is lower than the minimum wage.
At the same time, experts have prepared a number of recommendations. They will help you calculate the correct amount of vacation pay.
Basic nuances of calculating vacation pay
The period during which a citizen does not fulfill his duties at work, but rests, is provided for 11 months worked, and is called vacation. The regulated vacation period is 28 days.
The law stipulates the conditions under which a citizen can submit a corresponding application and in certain cases, this right arises for a person after six months after performing his duties at the workplace.
Vacation payments are compensation for an employee’s average earnings for one month. Typically, the cost of one working day is calculated, and then the resulting figure is multiplied by the number of days in the vacation period.
Articles on the topic (click to view)
- Fine for late payment of vacation pay
- What to do with unused vacation
- What to do if your employer does not pay vacation pay
- How long after employment is vacation allowed?
- Is maternity leave taken into account when calculating pensions?
- Accounting for compensation for unused vacation
- Dismissal while on maternity leave
As a result, you can even calculate the amount of vacation pay yourself, but it is necessary to take into account that the calculation of vacation pay when the minimum wage increases is carried out taking into account the new size of the indicator. In other words, the average citizen’s earnings for calculating vacation pay cannot be less than the minimum wage accepted at the time of calculation. It is important to emphasize that the minimum wage is reviewed and approved by the government annually and as the inflation component grows, it also increases.
Is compensation for unused vacation upon dismissal included in the minimum wage?
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The employee worked for a full month - October 2012. He is paid up to the minimum wage, because salary + regional coefficient is 3000.00 rubles. On October 31, 2012, the employee quits. He is paid for vacation not taken. Does he need to create a payment up to the minimum wage? Is the payment upon dismissal for unused vacation included in the minimum wage?
What data is required to calculate vacation pay?
To answer the question whether the minimum wage is included in the list of indicators required for calculating vacation pay, you will need to find out how the total amount is calculated. The following data is required for the calculation:
- duration of the vacation period;
- average daily earnings of a worker.
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According to Art. 115 of the Labor Code of the Russian Federation, the duration of vacation according to the standard can be no more than 28 days and only employees who perform their work duties within 11 months from the date of entry to work or from the date of the last vacation period can apply for this period. A citizen can receive half of the required period within six months after employment. The right to split vacation into parts is reserved to employees by the Labor Code.
Average daily earnings are the amount a citizen receives for each day of work. To get this figure, you will first need to calculate the average earnings using the formula:
- total income for the billing period / number of months in the billing year (usually 12) / 29.3 (average number of days per month.
The last step is necessary to determine exactly the average daily earnings. As a result, we can summarize - the minimum wage at this stage does not affect the calculation of vacation payments.
Indexation for salary increases
If there is a salary increase, then the answer to the question of whether vacation pay needs to be indexed will depend on the moment the decision was made:
- during the billing period - in this situation, the amount of income received in the billing period is multiplied by the increase factor;
- in the month when the employee goes on vacation - the same rule as in the first case;
- while the employee is on vacation - additional payment is made only for the period that begins from the moment the decision is made to increase the salary.
How does the minimum wage affect the final amount of vacation pay?
I have already said that such an indicator as the minimum wage (minimum wage) is approved at the legislative level by the government every year. The indicator serves to protect and provide certain guarantees to individuals performing certain job duties. In simple terms, the employer does not have the right to pay the employee less than the minimum wage at the time of calculations.
Expert opinion
Polyakov Pyotr Borisovich
Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.
A significant point is that the minimum wage does not determine the size of the salary, but rather the payment that a citizen receives “in hand.” The amount should include various compensations and bonus payments.
Additionally, it is worth noting that only workers who have performed their duties for a period of time specified by current legislation can count on the minimum wage. Despite the fact that the minimum wage is set at the federal level, subjects can independently determine their indicator, but on condition that it is not less than the federal one. Starting from July 1, 2021, the minimum wage is 7,500 rubles.
The procedure for calculating vacation pay and additional payment up to the minimum wage
Employees can receive additional payment to the minimum level only if two conditions are met:
- the employee performed the work for the required number of hours;
- the amount of his vacation pay is less than the specified minimum wage.
In other cases, no payment is made, even if the amount accrued for payment is less than the subsistence level.
The procedure for calculating vacation pay is as follows:
- The period for calculating the payment is determined.
- All employee income for the month included in the selected period are added up.
- The average daily earnings are calculated.
- The number of vacation days is multiplied by the resulting indicator.
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The amount received is compared with the current minimum wage and if it is less than the accepted figure, then the employer is obliged to make an additional payment to the established minimum.
In conclusion, it should be noted that every citizen who meets the requirements of the law can count on additional payment to vacation pay if it is less than the minimum wage. This rule is established by the Labor Code and must be complied with by employers.
How can an employer organize additional payment?
In order to fulfill the requirements of Art. 133 of the Labor Code of the Russian Federation, each employer must organize:
- conducting a monthly comparison of the accrued salary of each employee with the current minimum wage;
- calculation of additional payment up to the minimum wage (if the salary turned out to be lower);
- payment of the calculated amount of additional payment to employees.
To achieve this goal, the employer has several ways:
- monthly, based on accounting calculations, issue an order for additional payment up to the minimum wage, indicating specific employees and the amount of additional payment due to them;
- issue a one-time order (order) providing for mandatory monthly procedures for payroll payers: comparing the accrued salary with the minimum wage and determining the amount of additional payment;
- include a section on additional payment up to the minimum wage in an internal local act (in a collective agreement, regulations on wages, etc.)
If you have access to ConsultantPlus, check whether you have correctly calculated and completed the additional payment to the minimum wage. If you don't have access, get a free trial of online legal access.
We will tell you further how to issue an order for additional payment up to the minimum wage.
When does the minimum wage affect the amount of vacation pay?
In connection with the increase in the minimum wage, many employers have increased workers' wages three times over the past year. And during the holiday season, accountants have questions about whether the increase in the minimum wage affects the amount of vacation pay that needs to be paid to employees. A Rostrud specialist agreed to answer them.
— Igor Ivanovich, explain this situation. The employee goes on vacation from 05/03/2018 for 28 calendar days. The amount of vacation pay, calculated based on average earnings for 12 months, amounted to 8,960 rubles. The employee has no working days in May 2021, since May 1 and 2 are holidays. What formula should be used to calculate the amount of vacation pay based on the minimum wage:
• option 1:
Minimum wage in effect during the vacation period / Number of calendar days in the month in which the vacation falls x Number of calendar days of the employee’s vacation
• option 2:
Minimum wage valid during the vacation period / 29.3 x Number of calendar days of employee vacation
The regulation stipulates that the average daily earnings to pay for vacation provided in calendar days are calculated by dividing the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.3).
Taking into account the requirements of clause 18 of the Regulations and the fact that the employee’s average monthly earnings during the billing period do not reach the minimum wage, to calculate the average daily earnings, the minimum wage is divided by 29.3. And after that, the amount of vacation pay will be determined based on the number of calendar days of vacation (28 days).
In this case, based on clause 18 of the Regulations, is it necessary to calculate the additional payment of vacation pay up to the minimum wage in proportion to the number of vacation days? Or is there no need to charge or pay anything extra, since additional payments must be made only when the employee goes on vacation for a whole month?
— The employee’s vacation began in April and continues in May. For example, he went on vacation for 8 calendar days from 04/28/2018 to 05/05/2018.
— The employee works part-time. When calculating vacation pay, it turns out that today it is less than the minimum wage. Should vacation pay be calculated for a part-time worker based on the minimum wage or not? If so, should the minimum wage be divided by 2 since he works part-time?
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— The duration of working hours when working part-time should not exceed 4 hours a day. Within 1 month, the duration of working hours when working part-time should not exceed half of the monthly standard working hours established for the corresponding category of employees.
When providing a part-time worker hired at 0.5 rate of annual paid leave from May 1, 2021, you should keep in mind clause 18 of the Regulations. Taking this clause into account, the average monthly earnings of such an employee who has worked the full working hours during the billing period and fulfilled labor standards (labor duties) cannot be less than half of the minimum wage established by federal law.
Thus, to calculate the average daily earnings to pay for vacation, a part-time worker should take into account the average monthly earnings calculated on the basis of the minimum wage, which in this case will be proportional to the length of working hours of such an employee (1/2 of the minimum wage).
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The amount of vacation pay is below the minimum wage: is it necessary to pay extra?
How to calculate, pay extra and what happens if you break the law.
First of all, it is worth turning to the regulatory framework. What the law says about this situation:
- Article 114 of the Labor Code obliges the employer to retain the employee’s average earnings during the vacation period. That is, vacation pay should not be lower than the employee’s average salary.
- Article 139 of the Labor Code of the Russian Federation and other documents speak about how to correctly calculate average earnings. Accountants are well aware of this procedure.
- In December 2021, the Government of the Russian Federation published Resolution No. 922, which, among other things, states that the calculated average monthly earnings cannot be less than the minimum wage.
Thus, it turns out that when calculating the average monthly earnings, which is needed to determine the amount of vacation pay, the result should not be a value lower than the minimum wage.
