Can a salary be less than the living wage and how to hold the employer accountable

General information

The concept of a living wage

The subsistence level is usually understood as the amount of money per person that he needs to finance his basic needs.

That is, this is the minimum cost of the subsistence basket, which includes food and non-food products, as well as the cost of services (utilities, transport costs, etc.).

The composition of the consumer basket is periodically reviewed (every five years). This indicator is set by the federation and local authorities, taking into account the living conditions in each region. This value is calculated quarterly for each category of citizens (able-bodied, pensioners, children).

Attention! Its value is used in determining the minimum wage, minimum amounts of benefits and pensions. The cost of living indicates the well-being of citizens and how effectively the state implements social policy in the country.

The cost of living in Russia

The cost of living is calculated based on existing prices for goods and services, taking into account established inflation rates. The formula for determining this value includes the norms of consumption of goods and basic services established

Rosstat price index, as well as the existing demand for this product among citizens. Initially, a federal calculation is made, and then local authorities form a local minimum based on it.

The cost of living is determined after a quarter. Therefore, the value currently in effect is that which was calculated based on data from the 3rd quarter of 2021.

The following federal values of this indicator can be distinguished:

for the working population - 11,310 rubles;
for a pensioner - 8846 rubles;
for minors - 10,302 rubles.

Attention! These values are all-Russian. Each subject sets its own values.

The cost of living in Russia

At the beginning of 2021, the cost of living is the result of calculations for the 3rd quarter of 2021. The numbers will be revised only by April 2021 based on the results of the 4th quarter of 2021. Since PM depends on the needs of the citizen, it is divided into three main categories - minor children, people of working age, and pensioners. There are different consumer baskets for each category, so the output numbers are different from each other.

The PM value at the beginning of 2021 in Russia is:

The total figure per citizen is 10,328 rubles.
Minors – 10,181.
Able-bodied people – 11,160.
Pensioners – 8,496.

This indicator was adopted by the Government of the Russian Federation as a general indicator from which regions should build, but at the federal level it is recalculated taking into account individual standards and needs.

It is obvious that the basic conditions of a resident of the Primorsky Territory and the Northern region differ from each other, and therefore a single figure cannot be applied throughout the vast Russian Federation.

Can wages be below the subsistence level?

The Labor Code of the Russian Federation establishes that wages should not be less than the subsistence minimum. But this is a theory. Since this indicator is revised quarterly, the comparison is made with the minimum wage, which is determined for the current year on the basis of the subsistence minimum in force in the second quarter of the previous year. Therefore, when comparing, it is assumed that the salary will be less than the subsistence minimum for the selected period.

In addition, it must be taken into account that the salary for comparison should be summed up, and not for any part of it. Thus, in the presence of bonuses and additional payments, the answer to the question - can the salary be less than the subsistence minimum - becomes clear - yes.

In what cases can a salary be less than the minimum wage?

Employers often ask whether it is possible to pay wages less than the minimum wage. Under general conditions, the employee’s salary must be equal to or higher than the current minimum wage.

But in certain cases, a small remuneration rate is allowed. Let's take a closer look at these cases.

Part-time work

When establishing a minimum value, it is assumed that the employee must work the established standard duration per month.

Employee has been working for less than a month

Very rarely there are situations when an employee joins an organization or leaves from the beginning of the month or at the end of this period. As a result, for an incomplete period of time, he may receive an accrued salary that is less than the current minimum wage.

The main condition in this case is that when recalculated for a full month, the remuneration value is greater than the current minimum value and that correct accounting of time worked is maintained.

There was downtime in production

Work situations at an enterprise can be very diverse. As a result, the organization may suspend its activities for a certain period.

If downtime at work occurs due to the fault of the employer or due to independent reasons, the latter must pay for this time based on 2/3 of the employee’s rate.

Attention! For this reason, an employee can receive a salary per month at the rate of 2/3 of its amount established in the employment contract.

Salary deductions

Based on writs of execution or other documents, certain amounts may be withheld from the employee’s salary. As a result of such deductions, the employee may receive a salary significantly lower than the minimum wage.

However, such a situation cannot be considered a violation of the law if the initial accrual amount, before all deductions were made, was equal to or greater than the minimum wage.

Attention! The same algorithm is applied if personal income tax is withheld, even if a tax deduction is used.

Part-time work

If an employee works as a part-time worker, he does not have the right to work in a second place for more than 50% of the working time of work at the main place. At the same time, the law obliges him to establish a salary of no less than the minimum wage on the conditions of full compliance with the time norm.

Thus, his actual accrued payment may be less than the minimum wage, but it must be calculated based on the full salary of at least the minimum wage, taking into account the days or hours actually worked.

Being on sick leave or on vacation at your own expense

If an employee gets sick and takes sick leave, the employer actually does not pay him wages for the specified period. He is assigned compensation, which is calculated on the basis of average earnings for the previous 2 years. Its payment is made from the funds of the Social Insurance Fund.

However, the law establishes that the amount of average earnings for 1 month, calculated to compensate for sick leave, cannot be less than the established minimum wage.

Thus, if an employee was sick for part of the month, he will be paid a salary in proportion to the days worked, as well as compensation for sick leave.

Attention! If the employee was on vacation at his own expense, or absenteeism was recorded, then this period is not subject to payment. Therefore, at the end of the month, he will receive a salary only for the days actually worked for the month.

Other cases

If work or services at an enterprise are provided on the basis of a concluded civil contract and not an employment contract (i.e. the individual is not a full-time employee), then the amount of payment can be any and does not depend on the current minimum wage.

The thing is that the conclusion and execution of a GPC agreement is regulated by the Civil Code, and not the Labor Code; the services provided within its framework are not labor activity between the employer and the subordinate, and therefore the provisions of the minimum wage do not apply to it.

Where and how to complain about low wages?

If the wage is set below the minimum subsistence level (minimum wage), then the employee can file a complaint against the employer with the trade union, labor inspectorate, prosecutor's office or court.

Labour Inspectorate

The first regulatory body to which an employee should file a complaint about a small salary is the labor inspectorate. This body is precisely intended to monitor compliance with current labor legislation.

You can write the application directly to the inspectorate, submit it with your authorized representative, or use the mail. Upon application, the inspector must conduct an inspection of the company’s activities and, if necessary, issue an order to eliminate shortcomings. It is also within his competence to impose an administrative fine.

If the results of the inspection are unsatisfactory, you can complain to a higher inspection, or submit applications to the prosecutor's office or court.

Attention! It should be noted that the labor inspectorate cannot oblige the payment of funds - this can only be done as a result of legal proceedings.

Prosecutor's office

A body that has the right to receive complaints from employees regarding violations of labor laws and conduct inspections.

In order to fill out an application, you must contact the prosecutor's office in person and write it to the employee on duty, and also hand it over with your authorized representative who has a power of attorney, or send it by postal service.

Checks on complaints are carried out suddenly, without prior notification to the company. Based on the results, the employer may be given an order to eliminate violations, and in some cases, the inspection materials may be transferred to the judicial authorities.

What should an employee do in case of violation?

In practice, it often happens that a person’s salary is less than the subsistence minimum. Then citizens have questions related to how to behave correctly in the current situation. Before filing a complaint against the management of the company where a citizen works, you will need to assess the current situation.

For this purpose, the citizen begins to study the provisions of the employment agreement. This is required to find out what was initially promised to him upon employment. In addition, experts talk about the need to collect documentation reflecting real indicators of earnings paid to a citizen.

In this situation, we must not forget that we can talk about a salary not lower than the minimum wage only if the person has worked all the hours that amount to at least a month. At the same time, there should be no absences or delays. It is important to note that when formalizing relations using a civil law agreement, it is unacceptable to refer to the provisions of labor legislation.

Here it is necessary to take into account the requirements of civil law. This act does not reflect standards regarding the minimum wage. If complaints are found against the company's management, you can do the following:

create a minimum list of evidence and indicate it in the application;
use one of the possible options for protecting the rights of a citizen.

Currently, the employee has the right to use several methods to resolve this issue. This includes contacting the labor inspectorate, prosecutor's office or court.

Judicial practice on this issue

The court is the only body capable of making a decision on the recovery of funds from the employer. In this case, you can request not only the funds themselves, but also compensation for their underpayment.

To file a claim, you must write an application and attach supporting documents to it. Ideally, these should be pay slips that directly indicate the amounts of accruals and deductions.

Judicial practice on issues of additional calculation of wages up to the minimum wage is extensive, and almost always the trial ends in favor of the employee. It is impossible to attribute a low minimum wage to a lack of funds.

Employer's liability

If an employer pays a salary less than the subsistence minimum, no explanation will help - he may be brought to administrative (most often) or criminal (in some cases) liability.

Administrative

If the employer does not pay wages, or he has set it less than the legally established amount, then he is held accountable on the basis of clause 6 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

It provides a minimum of the following responsibilities:

For an official, a fine of 10-20 thousand rubles;
For an entrepreneur, a fine of 1-5 thousand rubles;
The fine for the organization is 30-50 thousand rubles.

If this offense is registered with this employer again, the consequences will include sanctions:

For an official, a fine of 20-30 thousand rubles or disqualification for a period of 1-3 years;
For an entrepreneur, a fine of 10-30 thousand rubles;
The fine for the organization is 50-100 thousand rubles.

Criminal

Criminal liability occurs when a manager pays a salary below the established minimum wage (subsistence level) for 2 or more months, and does this for personal gain. The punishment is established by Art. 145.1 of the Criminal Code of the Russian Federation.

It provides the following responsibilities:

A fine of 100-500 thousand rubles or income for a period of up to 3 years;
Forced labor for a period of up to 3 years, with deprivation of the right to hold a position for the same period;
Imprisonment for a period of up to 3 years, with deprivation of the right to hold office for the same period.

If the crime entailed serious consequences for the employee (for example, driving to suicide, begging and vagrancy, etc.), then the punishment increases:

A fine of 200-500 thousand rubles or income for a period of 1-3 years;
Imprisonment for a period of 2-5 years, with deprivation of the right to hold office for a period of up to 5 years.

Why was the minimum wage raised to the subsistence level?

Not why, but why: because they promised. Now the minimum wage will increase every year: from May 2021 onwards - from January 1. It is equated to the subsistence minimum, which the government established for the second quarter of the previous year. For example, for the minimum wage in 2019, they will take the cost of living for the second quarter of 2021. Social benefits and salaries will be fairer.

Before the increase, there was a strange situation: for example, the cost of living was 11 thousand rubles, and benefits were paid based on seven thousand.