The court left the employee the money accrued by mistake

In practice, situations arise when a payroll accountant makes mistakes when calculating the amounts of wages due to employees. In this case, employees may receive a larger amount or vice versa. In this article we will tell you what needs to be done to return the overpaid wages to the employee.

At the beginning, let's say that if the employee was paid a smaller salary, then you just need to pay it extra. In this case, you need to draw up an accounting certificate and a memo to the head of the institution. If the employee was paid a larger salary, difficulties may arise, since according to Art. 137 of the Labor Code of the Russian Federation, overpaid wages cannot be recovered from an employee, with the exception of a number of cases.

Overpaid wages as a result of:

– counting error;

– recognition by the body for consideration of individual labor disputes of the employee’s guilt in failure to comply with labor standards;

– his unlawful actions established by the court.

– incorrect application of labor legislation;

– incorrect application of other regulatory legal acts;

– other cases.

The employer has the right to recover from the employee overpaid wages

An employer has no right to recover overpaid wages to an employee.

What is a counting error?

Currently, the legislation does not contain a definition of the concept of “counting error”. According to the explanations of Rostrud employees, an arithmetic error is considered a counting error, that is, an error made during arithmetic calculations (Letter dated October 1, 2012 No. 1286-6-1). For a more clear understanding of what is recognized as a counting error and what is not, we present a table (the list of errors presented in it is not exhaustive).

Counting errors

Not counting errors

An arithmetic error, for example, when adding up the components of a salary. Note: an error made in arithmetic operations (actions related to counting) should be considered counting (Definition of the RF Armed Forces dated January 20, 2012 No. 59-B11-17)

Incorrect application of legislation, for example:
– payment for longer vacations;

– double payment for all overtime hours.

Incorrect application of the organization’s regulations, including:

– payment of a larger bonus;

– accrual of additional payments that are not established for this employee

Error as a result of a failure of the accounting program.
Note: There is currently conflicting judicial practice:

– a computer program failure is a special case of a counting error (Determination of the Samara Regional Court dated January 18, 2012 No. 33-302/2012);

– program failure – not a counting error, but a technical error (Appeal ruling of the Supreme Court of the Republic of Sakha (Yakutia) dated March 27, 2013 No. 33-709/2013)

Receipt of wages by an employee:
– twice;

– in a larger amount due to a technical error when entering data.

Note: the Ruling of the Supreme Court of the Russian Federation dated January 20, 2012 No. 59-B11-17 states that money paid to an employee twice is not considered a counting error. In addition, the same document notes that technical errors committed through the fault of the employer are not countable

Where to contact

If the boss or employee of the accounting service made a mistake when calculating and admitted it, then it is quite obvious that they have the opportunity to return the funds when transferring another paycheck. How to correct the situation if an employee was underpaid, the boss and accountant must figure it out themselves.

If it was not possible to resolve the situation peacefully, then you have to wonder about help from the authorities.

Where should an injured employee contact? There are three government bodies where an employee has the opportunity to complain about the illegality of actions and inactions of their boss.

Prosecutor's Office;
Judicial authorities;
Labor Safety Inspectorate.

The State Labor Inspectorate is a federal executive body, in accordance with Article 354 of the Labor Code of the Russian Federation. It is also an authoritative structure that can take responsibility for protecting the rights of employees.

The functions of this organization include:

Reception and consideration of applications from company employees;
Inspection of offending organizations;
Issues an order to prevent violated rights
Issues protocols on administrative violations;
Takes into account measures to eliminate the violated labor rights of company employees.
Reviews applications within thirty days.

Alexey Pavlov

Lawyer, ready to answer your questions.

Many employers are afraid of a labor inspector coming to their organization, so contacting the state labor inspectorate is the right decision.

The prosecutor's office is a relevant executive body where you can turn to for help with such questions. All acts issued by the prosecutor are subject to strict execution by the boss, so there is little chance of escaping responsibility.

The prosecutor's office considers applications within thirty days from the date of registration of the complaint in the office. After establishing unlawful actions on the part of the employer, the prosecutor's office issues an act of prosecutorial response, after which the boss is obliged to study the prosecutor's acts as soon as possible.

If a specialist decides to directly seek help from a court, then it makes sense to familiarize yourself with the provisions of Article 131 of the Civil Procedure Code, which details the requirements for a claim.

The statement of claim must include:

name of the court;
passport details of the plaintiff with registration;
name of the offending enterprise;
a descriptive part where the violated right is stated;
list of attachments to the claim.

The judge will consider the claim and then force the employer to pay the missing funds.

Alexey Pavlov

Lawyer, ready to answer your questions.

If you don’t understand where it’s best to turn in which cases, take advantage of
a free consultation - contact our experienced lawyers by phone or through an online consultant. They will answer your questions and offer solutions.

How to recover overpaid wages if an employee is fired?

To do this, it is necessary, as in the case when the employee continues to work in the institution, to draw up an act and notice, in which also demand the return of the overpaid amount of wages on a voluntary basis, but add that if the employee does not do this, the institution will go to court .
The institution has the right to go to court, since according to Art. 1102 of the Civil Code of the Russian Federation, a person who has unjustly enriched himself at the expense of another person is obliged to return this unjust enrichment to the latter, except for the cases provided for in Art. 1109 of this code. In paragraph 3 of Art. 1119 of the Civil Code of the Russian Federation states that wages and payments equivalent to them, pensions, benefits, scholarships, amounts of compensation for harm caused to life or health, alimony and other sums of money provided to a citizen as a means of subsistence are not subject to return as unjust enrichment. in the absence of dishonesty on his part and a counting error.

Thus, if an employer paid an employee a larger salary due to an accounting error, based on civil law, he has the right to demand the return of this amount even if the employee quit.

For your information

When going to court, the employer must prepare:

employment contract with a former employee;
documents on calculation and payment of wages;
act of the commission on the identified counting error;
a notice that was sent to an employee with an offer to voluntarily return the overpaid wages.

How are salaries formed?

According to Art.
21 of the Labor Code of the Russian Federation, cash payments for specialists in the final version consist of a salary, which is established by the employment agreement, bonuses and various deductions and deductions (alimony, fines, etc.). At the very moment when the employee decides to enter into an employment contract with the employer, it is necessary to discuss all the nuances on which the formation of pay will depend.

The following points are discussed:

Agreement conditions. Responsibility of the boss to the worker and vice versa. What is included in the employee’s labor obligations. What wishes do the parties have for each other, what are expected from the labor relationship.
Work and rest schedule. How many hours per day must the employee work, the number of working days per week, vacation time, and so on.
The amount of payment, how it will be transferred (cash or non-cash).

Having discussed the terms of the employment contract, the management and the future employee of the enterprise sign it, guided by the norms of labor legislation and personal wishes. The agreement cannot contradict the norms of law.

Is it possible to recover the amount of damage from an accountant who made an error in the calculation?

To answer this question, it is necessary to consider two situations: when an agreement on financial liability is concluded with the employee and when such an agreement is not concluded.
According to Art. 244 of the Labor Code of the Russian Federation, written agreements on full individual or collective (team) financial liability can be concluded with employees who have reached the age of 18 and directly service or use monetary, commodity valuables or other property. At the same time, lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts are approved by the Government of the Russian Federation. For your information

Currently, lists of positions and work filled and performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility, as well as standard forms of agreements on full financial responsibility, are approved by Resolution of the Ministry of Labor of the Russian Federation dated December 31, 2002 No. 85 .

In addition, financial liability in the full amount of damage caused to the employer can be established by employment contracts concluded with the deputy heads of the organization, the chief accountant (Article 243 of the Labor Code of the Russian Federation).

Liability Agreement
Concluded	Not concluded
The employer has the right to recover from the employee overpaid wages	An employer has no right to recover overpaid wages to an employee.
– issue an order to create a commission to establish the causes and extent of damage; – demand an explanatory note from the guilty employee; – draw up a damage report; – issue an order to compensate the guilty employee for the amount of damage	– issue an order to create a commission to establish the causes and extent of damage; – demand an explanatory note from the guilty employee; – if the employee refuses to give explanations, draw up an appropriate report;

According to Art.
248 of the Labor Code of the Russian Federation, recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee. For your information

If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, recovery can only be carried out by the court.

Responsibility for incorrect payroll

All payments and taxes, with the exception of income taxes, are paid by the management from the personal finances of the enterprise. The period for the formation and accrual of money is established on the basis of Art. 136 Labor Code of the Russian Federation. It clearly indicates the procedure for calculating pay, types of transfers and the nuances of generating monetary resources.

Responsibility for incorrect payments lies with the person who accrues them. As a rule, this is either the boss himself or an accounting employee.

In case of violations, the organization bears several types of responsibility :

Civil law. If the calculation of wages was made incorrectly, then the head or employee of the accounting department compensates for the monetary shortcomings with personal finances.
Material. Compensation for losses may be covered from wages.
Administrative. Penalties cannot be ruled out.
Tax office. If a deliberate violation is detected, tax officials may impose a fine.
Criminal. The consequences can be quite wide-ranging and not limited to the disadvantaged employee. They can also affect the boss.
Disciplinary. This could be a reprimand, a severe reprimand, or something else.

It is worth mentioning that several types of liability may apply.

For example, due to the fault of an accountant, an employee was paid less wages than required under the contract. The court imposed a fine (administrative liability), the boss reprimanded him (disciplinary liability), and he also had to cover the debt with his salary (financial liability).

In order to restore your violated rights and punish the offender, you first need to fully collect a package of necessary documents, with which we will go to the appropriate authorities.

Features of underpayment of vacation pay

When assigning vacation days and payments for them, several nuances are taken into account that directly affect the amount of vacation funds. The assignment of finances for the payment of vacation days comes through the submission of:

Statements from a specialist going on a well-deserved vacation;
Resolutions on the statement (consent) of the boss. After which an accountant or other employee draws up a rest order;
The accountant transfers vacation funds.

Funds for vacation are assigned no later than 3 days before the start of the vacation . If a significant and unclear underpayment of funds is detected, an employee of the enterprise has the right to file a complaint:

To the labor inspectorate, which will order an inspection of the offending organization.
To the court, if the boss did not deign to give the due amount of money peacefully.

If the problem is resolved peacefully, the boss has the opportunity to give the missing funds through an increase in pay or a one-time payment during vacation days.

Alexey Pavlov

Lawyer, ready to answer your questions.

Case of underpayment when going on sick leave

The peculiarities of the accrual of funds at the very moment when a person is sick or is being treated in a hospital are determined by certain reasons that directly depend not only on the amount of the transfer, but also on the peculiarities of their collection from certain authorities.

Money for temporarily disabled citizens is paid either from the fund of the insurance organization or from the social insurance fund (in case of issuing a certificate of incapacity for work for a period of more than 3 days, starting from the 4th day).

There are times when the Social Insurance Fund pays financial resources from its fund from the 1st day of sick leave. The time for payment of finances is limited to the period of temporary disability for the entire period noted on the sick leave certificate, which is provided at the place of work.

According to Federal Law No. 255-F3, a disabled citizen has the right to expect the following amount of benefit payments:

60% of average earnings, if the insurance period is less than 5 years;
80% of average earnings, if you have an insurance period of 5 to 8 years;
100% of earnings, if you have more than 8 years of insurance experience.

When calculating sick leave funds, they take into account not only the length of service from the last place of work, but also take into account all the years worked in other companies, with previous employers. Average earnings are calculated based on the two calendar dates preceding the start of the sick year, without taking into account the current one.

If an employee discovers an underpayment of funds, there is an opportunity to personally address the question to the boss, ask the accounting department for a payslip that lists the amount of funds for temporary disability, and receive clarification on its contents.

What to do next?

After this, the employee writes a complaint about the boss’s unlawful actions and sends it to the Social Insurance Fund. He, in turn, orders an inspection of the employer’s organization and, if necessary, eliminates the violated rights of the employee. To file a complaint against your boss with the FSS, you need to collect some documents:

Complaint in free form.
Sheet of temporary incapacity for work. You can just have a copy of it.
Statement of insurance record, if available. If it is not there, the FSS has the opportunity to independently verify the employee’s length of service, based on his personal data.
A photocopy of the employment agreement and other documents directly or indirectly related to the transfer of finances.

Alexey Pavlov

Lawyer, ready to answer your questions.