Labor Relations are largely based on the employer's trust in the employee. Staff are provided necessary tools and equipment, often of high material value (for example, office equipment). In some cases, the employee is issued with a report large sums money for the safety or strict intended use of which he is responsible. In the event of loss, damage or shortage of property entrusted to an employee, the organization has the right to legally recover damages from the culprit.
Anastasia Morgunova, director of the tax consulting department of online accounting “My Business,” explains how to correctly record the fact of causing harm, establish its size and investigate the circumstances in which it arose.
Under what conditions does the employee’s financial liability to the employer arise?
Occurs when the following conditions are simultaneously present:
- causing direct actual damage. Confirmation of the fact of damage is, for example, an act of discovery of damage caused by an employee, explanatory letter employee on the fact of causing damage, inventory materials and other evidence
(in particular, the damaged property itself);
- illegality of actions or employee inaction. For example, damage arose as a result of the fact that the employee did not fulfill his duties established employment contract, job description, internal rules labor regulations and others local acts organizations;
- causation between the employee’s unlawful actions or inaction and the direct actual damage that occurred. The cause-and-effect relationship must be obvious. For example, an employee dropped a computer on the floor, which then stopped working;
- employee's fault in causing damage to the employer. Guilt is understood as intent or carelessness (frivolity, negligence) in the employee’s actions that led to
to damage to the employer.
Confirmation: part 1 art. 233 of the Labor Code of the Russian Federation, paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.
A comment:When establishing the employee’s guilt, it is necessary to find out whether he could have acted differently in this situation, whether he had the opportunity to avoid material losses. There are circumstances that completely exclude the guilt of the person who caused the damage (if, of course, he can confirm their presence with sufficient evidence). This is an extreme necessity, an act of force majeure, a normal economic risk, necessary defense, as well as the employer’s failure to fulfill the obligation to ensure proper conditions for storing property. Labor Code RF, mentioning these concepts in Art. 239, does not reveal their essence. I believe that in in this case you need to be guided by other legal acts, in particular Art. 401 Civil Code of the Russian Federation, Art. 37, 39 of the Criminal Code of the Russian Federation, Art. 2.7 Code of Administrative Offenses of the Russian Federation. para. 2 clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006. On the websitewww.moedelo.org you can on practical examples learn how to apply the above concepts to employment relationships.
What is the financial responsibility of the employee to the employer?
The employee's responsibility lies in the obligation to compensate for direct actual damage caused to the employer (losses that can be accurately calculated). At the same time, the employer does not have the right to recover lost income (lost profits) from the employee.
Direct actual damage means (in total):
Real decrease in the employer's cash assets or deterioration in its condition
(including property of third parties held by the employer, if he is responsible for its safety);
The need for the employer to make costs or excess payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties.
For example, direct actual damage may include:
Lack of cash or property assets;
Damage to materials and equipment;
Costs for repairing damaged property;
Payments for forced absence or downtime;
The amount of the fine paid, which was applied to the employer due to the fault of the employee.
The damage that the employee caused to third parties means all amounts paid by the employer to third parties to compensate for the damage. In this case, the employee can be held liable only within these amounts and provided that there is a cause-and-effect relationship between his culpable actions (inaction) and causing damage to third parties.
Confirmation: part 1, 2 art. 238 of the Labor Code of the Russian Federation, paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006, letter of Rostrud No. 1746-6-1 of October 19, 2006.
To what extent must the employee compensate for the damage caused?
The employee must compensate for damages either in the amount of his average monthly earnings or in full. It depends on what financial responsibility is assigned to the employee.
By general rule, the employee bears limited financial liability for damage caused - within the limits of your average monthly earnings (Article 241 of the Labor Code of the Russian Federation). But in some cases it may be entrusted to him full financial responsibility, that is, the obligation to compensate the damage caused to the employer in full (Article 242 of the Labor Code of the Russian Federation).
Cases of full financial liability are listed in Art. 243 of the Labor Code of the Russian Federation. For example, it may be assigned to the employee in accordance with the Labor Code of the Russian Federation or federal laws. So, in accordance with Art. 277 of the Labor Code of the Russian Federation, the head of the organization bears full financial responsibility for damage caused to the employer.
In addition, the employee bears full financial responsibility if he caused damage as a result of a crime, an administrative offense, while drunk, with the intent to cause harm to the employer, and in some other cases.
Such liability also arises in the case when the employee was entrusted with valuables under an agreement on full financial liability, concluded with him individually or as part of a team (team), or he received them under a one-time document (power of attorney). It should be remembered that an agreement on full financial liability can only be concluded with an adult employee (over 18 years of age).
Confirmation: Art. 2439-245 of the Labor Code of the Russian Federation, paragraphs 9-12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 52 of November 16, 2006.
A comment:Employers sometimes consider concluding an agreement on full financial responsibility to be a “panacea for all ills.” Some even offer to sign such a document to all employees accepted into the organization without exception. However, it should be taken into account that agreements on full financial liability can be concluded only with employees whose positions (works) are included in the Lists, approved. Resolution of the Ministry of Labor of Russia No. 85 of December 31, 2002 (materially responsible persons). In other cases, the existence of such agreements is not justified - they will not have legal force. This is clearly demonstrated by judicial practice.
Several employers tried to recover damages in full from employees through the court, however, compensation for damages only in the amount of the average monthly earnings of the defendants was recognized as legal. The fact is that agreements on full financial liability were unlawfully concluded with employees who did not fall under the above lists (a production department specialist and a watchman). These employees were not directly involved in the maintenance or use of monetary, commodity values or other property. The court indicated that these lists of positions (works) are exhaustive and are not subject to broad interpretation (Determination of the Supreme Court of the Russian Federation No. 18-B09-72 of November 19, 2009, Determination of the Moscow City Court No. 33-19538 of June 24, 2011, Determination of the Primorsky Regional Court No. 33-2124 of March 29, 2010).
How to determine the amount of material damage (losses) caused by an employee?
You need to determine the amount (as a general rule) based market prices on property that has suffered damage. They must be valid on the day the damage occurred (for example, on the day the shortage of a particular property was discovered). In this case, the amount of material damage cannot be lower than the value of the property according to accounting data (taking into account its wear and tear).
Confirmation: part 1 art. 246 of the Labor Code of the Russian Federation.
At the same time, separate regulations may establish a different procedure for determining the amount of material damage. For example, for the theft or shortage of narcotic drugs, psychotropic substances, the employee is liable in the amount of 100 times the amount of direct actual damage caused to the organization (clause 6 of article 59 Federal Law No. 3-FZ of January 8, 1998).
Confirmation: Art. 238, part 2 art. 246 of the Labor Code of the Russian Federation.
How to confirm the amount of material damage (loss)?
It is necessary to confirm the amount before making a decision on compensation for material damage (losses) by the employee. The procedure for confirming the amount depends on the type of material damage caused.
As a general rule, to establish the amount of damage (losses) caused and the reasons for its occurrence, the employer must to inspect. For this purpose, the organization has the right to create a special commission with the involvement of necessary specialists(Part 1 of Article 247 of the Labor Code of the Russian Federation). For example, such a check is necessary if the damage occurred as a result of necessary defense. In this case, the employee’s financial liability is completely excluded (Article 239 of the Labor Code of the Russian Federation).
If facts of theft, abuse or damage to property are detected, the above check is carried out in the form inventory(clause 2 of article 12 of Federal Law No. 129-FZ of November 21
1996). Its results must be indicated in the comparison sheet (form No. INV-18 or No. INV-19).
Confirmation: clause 4.1 Guidelines, approved By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995
The amount of material damage resulting from an accident that occurred through the fault of an employee can be determined without conducting an internal audit. This is due to the fact that the reasons for the occurrence of material damage and its amount can be justified by:
Documents received from traffic police officers upon the accident (as confirming the cause of the damage);
Documents received from repair and insurance companies (confirming the amount of damage caused by the at-fault employee).
Once the amount of material damage has been determined, the organization must request from the employee written explanations of the reasons why the damage occurred. If the employee refuses (evades) to provide such an explanation, a report must be drawn up.
Confirmation: Part 2 of Art. 247 of the Labor Code of the Russian Federation.
How to reflect in accounting a shortage that arose due to the fault of the financially responsible person (other guilty parties) and was identified as a result of an inventory?
The identified shortage (taken into account after the inventory in the debit of account 94 “Shortages and losses from damage to valuables”) must be reflected as a settlement with the financially responsible employee (other person) recognized as the culprit.
The postings in this case will be as follows:
DEBIT 73-2 (76-2) CREDIT 94
Repayment of debt for the shortage by the employee (other guilty person) is reflected.
The market value of the property, which is compensated by the guilty person, may exceed the value at which the property is recorded. In this case, the organization must make the following entries:
DEBIT 73-2 (76-2) CREDIT 94
The shortage in the amount of the value at which the property is reflected in accounting is attributed to the financially responsible person (another guilty person);
DEBIT 73-2 (76-2) CREDIT 98-4
The difference between the amount to be recovered from the guilty party and the value at which the property is recorded is reflected.
As the guilty person recovers what is due from him Money, the specified amount is written off as other income in proportion to the repaid debt:
DEBIT 50 (51, 70) CREDIT 73-2 (76-2)
Repayment of debt for the shortage by the employee (other guilty person) is reflected;
DEBIT 98-4 CREDIT 91-1
The difference between the amount to be recovered from the guilty person and the cost of the missing valuables as part of other income is reflected.
If a shortage that arose due to the fault of a financially responsible person (other guilty parties) is identified in the reporting period, but relates to previous reporting periods, then it must be taken into account as part of future income:
DEBIT 94 CREDIT 98
The shortage related to previous periods, but identified in the reporting period, is reflected;
DEBIT 73-2 (76-2) CREDIT 94
The shortage identified in the reporting period, but relating to previous periods, is attributed to the financially responsible person (another guilty person).
As the amount due from the guilty person is collected, the shortfall is written off as other income:
DEBIT 98 CREDIT 91-1
The shortfall identified in the reporting period, but relating to previous periods, is reflected in income.
The guilt of the financially responsible person (other guilty persons) must be documented. Supporting documents may be a decision of investigative or judicial authorities, a conclusion on the fact of damage to valuables, which is issued by the technical control department or relevant specialized organizations (quality inspections, etc.).
Confirmation: clauses 5.1, 5.2 of the Methodological Instructions, approved. By Order of the Ministry of Finance of Russia No. 49 of June 13, 1995, Instructions for the Chart of Accounts.
Also on the website www.moedelo.org you will find the necessary accounting entries in order to reflect:
Withholding material damage caused to the organization from the employee’s salary;
Accountable amounts issued to an employee for the performance of an official task that were not returned on time, as well as the deduction of such amounts from the employee’s salary;
Shortage of property that belongs to the organization, but is not listed on the balance sheet accounts, if the cause of the shortage is the fault of the employee (financially responsible or other guilty person), and others.
What maximum size withholding amounts of material damage from an employee’s salary?
The maximum amount of deductions for amounts of material damage from an employee should not exceed his average monthly earnings (Part 1 of Article 248 of the Labor Code of the Russian Federation).
At the same time, no more than 20 percent can be withheld from an employee’s monthly salary (Part 1 of Article 138 of the Labor Code of the Russian Federation).
The amount of damage that exceeds the average monthly salary of the employee (if brought to full financial liability), if the perpetrator does not agree to compensate it voluntarily, can be recovered from him only through the court (Part 2 of Article 248 of the Labor Code of the Russian Federation).
An employee can voluntarily compensate for the damage caused by him (both with limited and full financial liability). In this case, by agreement of the parties, compensation for damage by installments is allowed. In addition, the employee must submit to the employer a written obligation to compensate for damages, in which it is necessary to indicate specific payment terms (Part 4 of Article 248 of the Labor Code of the Russian Federation).
An employer can confirm its consent to payment by installments:
Either a permissive inscription (for example, “I don’t object” or “allow”) on the employee’s written obligation;
Or a separate administrative document, which will specify the procedure for settlements (for example, an order, a decree).
If an employee gave a written obligation to compensate for material damage, and then quit and refused to pay the debt, the outstanding debt can only be recovered through the court.
Confirmation: part 4 art. 248 of the Labor Code of the Russian Federation.
Financial liability for damage caused to the employer
(organization, enterprise, institution and individual entrepreneur), can be carried by any employee - both an ordinary employee and a manager. The fundamental legislative act defining the employee’s obligation to compensate for damage caused to the employer is the Labor Code Russian Federation, which in Chap. 39 “Financial liability of the employee” establishes what kind of damage is subject to compensation and under what conditions the employee is obliged to compensate for this damage. In addition, the Labor Code of the Russian Federation defines the limits and procedure for collecting damages, provides guarantees when imposing financial liability on an employee, as well as the employer’s right to refuse to collect damages. Knowledge of the provisions of the Labor Code of the Russian Federation will allow heads of organizations and individual entrepreneurs correctly determine the cases of application of one or another type of liability, its limits, as well as the guilt of the specific employee (workers) on whom it is assigned.
According to Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate for direct actual damage that he caused to the employer.
Financial liability for damage caused to the employer is assigned to the employee only if the damage was caused by his guilt. Only those employees with whom a written agreement has been concluded will receive full compensation for damages. Responsibility for damage caused is not removed from the employee even after the termination of the employment relationship, if the damage was caused during the validity of the employment contract. Financial liability implies the withholding of funds from the employee to compensate for the material damage caused by him in the manner and amount established by the Labor Code of the Russian Federation. When determining the amount of damage, only direct actual damage is taken into account and lost income that the employer could have received, but did not receive as a result of the employee’s unlawful actions, is not taken into account, i.e. lost profit. Direct actual damage is understood as a real reduction (deterioration) of the employer’s available property (including property of third parties located by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs for the restoration or acquisition of property.
The amount of damage is calculated based on market prices prevailing in the area on the day the damage occurred. But it cannot be lower than the residual value of the lost or damaged property according to data accounting. When determining damage, actual losses within the limits are not taken into account established standards natural loss.
Material damage is not recovered from the employee if it arose as a result of force majeure - an emergency and unpreventable event, the elimination of a danger threatening the person, as a result of necessary defense. Financial liability also does not arise if the employer himself fails to fulfill his obligations to ensure proper conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). Thus, labor legislation directly provides that an employee may be considered guilty
in causing damage if his actions were committed intentionally or through negligence, i.e. illegal. Should be paid Special attention to the provisions of Art. 240 of the Labor Code of the Russian Federation, which provides for the right of the employer, at its own discretion, to decide the issue of holding an employee financially liable: to recover from him the cost of damage or to completely or partially refuse to recover from the guilty employee the damage caused by him.
If the employer decides to recover from the employee the damage caused by him, then compensation is made in the amount of two types of liability provided for by labor legislation - limited and full (Articles 241, 242 of the Labor Code of the Russian Federation).
At limited liability damage is compensated in an amount not exceeding the employee’s average monthly earnings. That is, the smaller of the two amounts is chosen: if the damage is less than the salary, it will be compensated in full. If the salary is less than the damage, an amount equal to the salary is recovered, i.e. Some of the damage will not be reimbursed. And this is a general rule. Full financial liability is an exception and is possible only for those employees who directly serve or use monetary, commodity valuables or other property. At full financial responsibility damages are compensated without any restrictions, but this type of liability may apply only in cases provided for in Art. 243 Labor Code of the Russian Federation:
1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is assigned financial liability in full for damage caused to the employer during the performance of the employee labor responsibilities;
2) shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or toxic substances;
5) damage caused as a result of the employee’s criminal actions established by a court verdict;
6) damage caused as a result of an administrative violation, if established by the relevant government body;
7) disclosure of information constituting a secret protected by law (official, commercial or other), in cases provided for by federal laws;
8) damage was caused while the employee was not performing his job duties.
Persons under 18 years of age may bear full financial liability only for intentionally causing damage while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative offense (for example, in the case of criminal prosecution for theft).
When hiring employees for certain positions or work related to the servicing of monetary and commodity assets, heads of organizations (individual entrepreneurs) must conclude agreements with them on full individual or collective (team) financial responsibility (Part 1 of Article 244 of the Labor Code of the Russian Federation). If financial liability is established by federal law, then in this case it is not necessary to conclude an agreement on full financial liability.
Decree of the Ministry of Labor and social development of the Russian Federation dated December 31, 2002 No. 85 approved the Lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility (hereinafter referred to as the Lists), as well as Standard forms of agreements on full financial responsibility1. Employers should be guided by the Lists when concluding agreements on full financial responsibility, both individual and collective. Collective (team) full financial liability for causing damage to the employer is provided for in Art. 245 Labor Code of the Russian Federation. Agreements can be concluded in organizations of any legal form and form of ownership. Agreements on full financial liability can be concluded with employees specified in the Lists, subject to the following conditions:
– the employee reaches 18 years of age;
– direct transfer of monetary, commodity valuables or other property for storage, processing, sale (release), transportation or use in the production process, i.e. for maintenance or use.
The lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility for shortages of entrusted property are not subject to broad interpretation. When combining professions (positions), an agreement can be concluded with the employee if the main or combined profession (position) is provided for in the Lists. An agreement on full financial liability concluded with an employee whose position (job) is not in the Lists has no legal force.
An employee who has entered into an agreement on full financial liability with a private entrepreneur bears full responsibility for ensuring the safety of those valuables that he personally received according to an invoice or other accounting document, despite the fact that in some cases other persons (for example, auxiliary workers) also have access to these valuables.
An agreement on full financial liability is concluded with an employee on the basis of an employment contract and an order in a standard form2, approved by Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. It specifies the responsibilities of the employee and the employer to ensure the safety of valuables. Failure by the employer to fulfill obligations to provide adequate conditions for storing property entrusted to the employee is the basis for releasing the employee from financial liability, and in appropriate cases, for imposing the obligation to compensate for damage on the guilty manager, his deputy or chief accountant.
The agreement between the manager and the employee is drawn up and signed by the parties in two copies, one of which is kept by the administration, the second by the employee. Required condition The validity of the contract is the date of its conclusion, since from that moment the contract comes into force, and the employee becomes responsible for the failure to preserve the valuables entrusted to him. The employee is not responsible for any shortages that occur before the transfer of valuables. If there is no date for concluding the contract, the latter is considered invalid.
The validity of the concluded agreement on full financial liability extends to the entire time of work with the material assets entrusted to the employee. A financially responsible employee, in accordance with the contract, must promptly report all circumstances that threaten the safety of the property entrusted to him, keep records, draw up and submit to the accounting department commodity-monetary and other reports on the balances and movement of the property entrusted to him (commodity reports). At enterprises where commodity reports are not maintained, transactions of the movement of valuables are recorded in the accounting registers according to primary documents, represented by financially responsible persons.
Financially responsible person must participate in the inventory of the valuables entrusted to him, and the administration of the employer company is obliged to create conditions for the employee to normal operation and ensuring the complete safety of the valuables entrusted to him, familiarize him with the current legislation on liability, as well as other regulations on the procedure for storage, reception, processing, sale, release, transportation and other operations with valuables.
The employee does not bear financial liability if damage from shortage or damage to valuables was not his fault. This condition must be specified in the contract. In addition, this agreement provides for full financial liability only for shortages and damage to valuables. In all other cases, damage is compensated in accordance with the provisions of the Labor Code of the Russian Federation on limited liability.
The employee is liable if he causes damage to the employer, if the employer proves:
- the fact of causing material damage to him;
- an offense committed by the employee, i.e. culpable act or inaction resulting in damage;
- the presence of a causal connection between the action or inaction of the employee in the labor process that caused the damage;
- amount of damage;
- in cases established by law, the existence of an agreement on full financial liability.
For this purpose, the employer checks the labor behavior of the employee who caused property damage. If necessary, a special commission is created. Relevant specialists are included in its composition by order of the employer.
The employee is required to provide a written explanation of the cause of the property damage he caused. The employee is obliged to give such an explanation by virtue of Part 2 of Art. 247 Labor Code of the Russian Federation. If the employee refuses or evades providing an explanation, the employer draws up a corresponding act. In Part 2 of Art. 247 of the Labor Code of the Russian Federation does not specify the period required for giving explanations. Since the basis of financial liability is an offense, a disciplinary offense, in this case the period provided for in Part 1 of Art. 193 of the Labor Code of the Russian Federation - two working days.
In contrast, an employee not only has the right to familiarize himself with all the materials of the verification of his offense, which resulted in material damage, to appeal them, to submit petitions, i.e., to contribute to the objectivity of the verification, but also to attract a representative for this purpose (Part 3 of Article 247 of the Labor Code of the Russian Federation ). Such a representative may be a specialist who, in the employee’s opinion, provides the necessary knowledge for an objective, complete and legal analysis of the charges brought against the employee for committing an offense that caused material damage to the organization.
According to current legislation, the employer is compensated only for direct actual damage. The employee does not reimburse income lost as a result of the offense (lost profits). They are in accordance with Part 1 of Art. 238 of the Labor Code of the Russian Federation “are not subject to recovery from the employee.”
Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in its condition (including property of third parties located by the employer, if he is responsible for its safety), as well as the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property or for compensation for damage caused by the employee to third parties.
According to current labor legislation, an employee’s financial liability is limited to his average monthly earnings. That is why it is called limited. The limited amount of compensation for damage is explained not only by the legislator’s concern for protecting the interests of the employee, but also by working conditions. During the working day, especially towards its end, the employee’s self-control and assessment of the dangers that are always present when handling machines, tools, materials, and semi-finished products often decrease, i.e., a situation is created that contributes to the production of defective products, tool breakage, and increased wear means of production.
If the property damage does not exceed the average monthly earnings of the employee, then the employer, with the consent of the employee, within a month may issue an order to recover the damage caused. This period is calculated from the day the inspection is completed and the employer determines the amount of damage caused by the employee.
An employer must go to court to recover damages if:
- the employee does not agree to voluntarily compensate for the property damage caused;
- the amount of such damage exceeds his average monthly earnings;
- the employee quit and has an outstanding debt for the damage he caused to the employer’s property.
An employee may, on his own initiative, compensate the damage caused to the organization in whole or in part. The installment plan is established by agreement of the parties. The employee gives a written obligation to compensate for damages, indicating specific terms and amounts of payments.
With the consent of the employer, the employee can compensate for the damage by transferring equivalent property to the employer or repair the damaged property.
The employer may refuse to collect damages, reduce their amount, bring the employee to disciplinary liability, or send materials to law enforcement agencies if the damage was caused by an administrative offense or crime.
The legislator in certain cases establishes full financial employee liability for damage caused to the employer. It varies according to content offenses and by subject composition.
In Art. 243 of the Labor Code of the Russian Federation stipulates cases of full financial liability of an employee:
- a situation where labor legislation imposes financial liability on an employee for damage caused by him to the employer during the performance of his job duties (full financial liability, for example, accrues to a telecom operator on the basis of Federal Law of July 7, 2003 No. 126-FZ “On Communications” );
- shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;
- intentional causing of damage to the employer's property by an employee;
- causing damage while under the influence of alcohol, drugs or other toxic substances;
- causing damage as a result of a crime committed by an employee and established by a court verdict;
- damage caused by an employee’s administrative misconduct, if administrative measures were applied to the employee or the fact of damage to the employer’s property was established;
- disclosure of information constituting a state, official, commercial or other secret protected by law, if this is provided for by federal law, for example “On Trade Secrets”;
- damage was caused while the employee was not performing his job duties, i.e. the damage was caused by the employee in his free time. At the same time, he uses the means of production belonging to the employer, as a rule, in his own interests.
According to the subject composition, the legislator highlights the features of full financial liability under the employer’s agreement with the deputy head of the organization, the chief accountant (Part 2 of Article 243 of the Labor Code of the Russian Federation). The head of the organization bears full financial responsibility for direct actual damage caused to the organization (Part 1 of Article 277 of the Labor Code of the Russian Federation). In cases provided for by law, he also compensates for losses caused by his guilty actions, in accordance with the norms of civil law (Part 2 of Article 277 of the Labor Code of the Russian Federation).
An employee under the age of 18 bears full financial responsibility for damage caused to the employer only:
- for intentionally causing damage;
- if damage is caused a minor worker in a state of alcohol, drug or other toxic intoxication;
- for damage caused as a result of an administrative offense or crime (Part 3 of Article 242 of the Labor Code of the Russian Federation).
Full financial responsibility of the employee may also be based on agreement Such an agreement is concluded with an adult employee upon hiring, if material and monetary values are transferred (entrusted) to him to perform a job function. The agreement is usually concluded when the employee joins the organization simultaneously with the employment contract. The standard form of an agreement on full financial liability was approved by the Ministry of Labor and Social Development of the Russian Federation on December 31, 2002. The individual agreement provides for the rights and obligations of the employee and the employer. In particular, it stipulates the employer’s obligation to create for the employee the conditions necessary for normal work and to ensure the complete safety of the property entrusted to him. As a rule, failure to fulfill this obligation releases the employee from financial liability in whole or in part. The agreement is drawn up in two copies having equal legal force and is kept by each of the parties. An agreement on full financial liability is concluded only with an employee performing work or holding a position related to the storage, processing, sale (vacation), transportation or use in the labor process of material assets belonging to the employer. The list of positions and works is established on behalf of the Government of the Russian Federation and the Ministry of Health and Social Development of Russia. The parties to the employment contract cannot go beyond it. It is prohibited to expand the list in local regulations and collective agreement.
If the list approved by the Ministry of Health and Social Development of Russia on December 3, 2002 changes, the agreement on full financial liability should be revised accordingly.
Along with the labor legislation, it is provided collective (team) responsibility for property damage caused to the employer. It is also negotiable. The employer enters into an agreement with a collective (team) of workers if, when they jointly perform work related to the storage, processing, sale (vacation), transportation, use or other use of the valuables transferred to them, it is impossible to differentiate the responsibility of each employee for damage and conclude an agreement with him on full individual financial liability (Part 1 of Article 245 of the Labor Code of the Russian Federation). The standard form of such an agreement was approved by a resolution of the Russian Ministry of Labor dated December 3, 2002.
The agreement on collective (team) financial liability is concluded in in writing the employer and all members of the team (team). It is developed by the parties based on standard contract. The initiative usually comes from the employer and is formalized by his order (instruction), which is attached to the contract.
The agreement on (team) financial responsibility stipulates: 1) the subject of the agreement; 2) rights and obligations of the team (team) and the employer; 3) the procedure for maintaining records and reporting; 4) procedure for compensation of damages. The contract is signed by the employer, the head of the team (team), and all members of the team (team).
The team leader (foreman) is appointed by order (instruction) of the employer, taking into account the opinions of the members of the team (team). During the absence of the foreman (manager), the employer assigns his duties to one of the members. The contract is not renewed upon departure or admission to the team (team) individual workers. In the event that more than 50% of the original team members or the foreman leave, the contract is renegotiated. When individual employees are admitted to the team, the contract specifies the date of entry and the employee’s signature.
The contract stipulates the employer’s obligation to create a team (team) the necessary conditions for the complete safety of the property entrusted to them to perform the assigned labor function. The employer is obliged to take timely measures to identify and eliminate the reasons that impede the safety of property transferred by the employer to the team, identify specific persons responsible for causing damage, and hold them accountable.
The collective under the contract is responsible for direct actual damage caused to them, as well as for damage incurred by the employer as a result of compensation for damage to third parties. Material damage is reimbursed by the collective only if it occurred through the fault of its members.
The amount of damage caused to the employer's property is determined by actual losses, which are calculated at market prices in force in the area at the time of the damage. However, it cannot be lower than the value of the lost property according to accounting data. In this case, the degree of wear and tear of the property is taken into account.
In accordance with Part 2 of Art. 246 of the Labor Code of the Russian Federation may be established by law special order determining the amount of damage caused to the employer by theft, intentional damage, shortage or loss individual species property and other valuables (precious metals, gems, narcotic substances). This rule also applies to cases where the actual damage exceeds its nominal amount. Thus, the Federal Law of January 8, 1998 No. Z-FZ “On Narcotic Drugs and Psychotropic Substances” provides for financial liability of employees in an amount 100 times higher than the direct actual damage caused to the employer.
The Labor Code of the Russian Federation stipulates the circumstances excluding financial liability parties to the employment contract: force majeure, normal economic risk, extreme necessity, necessary defense, failure of the employer to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.
Financial liability of the employee for damage caused to the employer
1. The employee’s financial liability consists of his obligation to compensate for direct actual (real) damage caused to the employer.
Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in its condition; the need for the employer to make costs or excessive payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties. Direct actual damage can be expressed by a shortage of valuables (property or monetary), damage to tools, office equipment, vehicles, materials. Expenses for repairing damaged property, amounts paid as a fine, payments for forced absence or downtime also apply to direct actual damage.
Lost income (lost profits) cannot be recovered from the employee.
The Civil Code of the Russian Federation defines real damage as expenses that a person whose right has been violated has made or will have to make to restore the violated right, as loss or damage to his property and, therefore, includes it in the concept of losses. The concept of losses also includes lost profits - lost income that a person would have received under normal conditions of civil transactions if his right had not been violated. By virtue of Art. 15 of the Civil Code of the Russian Federation, a person whose right is violated has the opportunity to demand full compensation for losses, i.e. real damage and lost profits, unless the law or contract provides for compensation for losses in a smaller amount.
The understanding of real damage in labor and civil legislation coincides, but only in relation to the employee. The exception is Part 2 of Art. 277 of the Labor Code, which holds the head of the organization responsible for losses caused by his guilty actions. In relation to the employer, compensation for damages according to the rules of Art. 234 and TC essentially means compensation for losses.
2. The employee is obliged to reimburse the employer for expenses incurred by him that arose as a result of compensation for damage caused by this employee to third parties.
Plenum Supreme Court The Russian Federation in paragraph 15 of its resolution of November 16, 2006 N 52 “On the application by courts of legislation regulating the financial liability of employees for damage caused to the employer” * (6) explained that damage caused by an employee to third parties should be understood as all amounts , which are paid by the employer to third parties as compensation for damage. It must be borne in mind that the employee can only be held liable within these amounts and provided that there is a cause-and-effect relationship between the employee’s guilty actions (inaction) and causing damage to third parties.
Article 238. Financial liability of an employee for damage caused to the employer
The employee is obliged to compensate the employer for direct actual damage caused to him. Unreceived income (lost profits) are not subject to recovery from the employee. Direct actual damage is understood as a real decrease in the employer’s cash property or deterioration in the condition of said property (including property of third parties owned by the employer, if the employer is responsible for the safety of this property), and also the need for the employer to make costs or excess payments for the acquisition, restoration of property or compensation for damage caused by the employee to third parties. Part three is no longer in force. - Federal Law of June 30, 2006 N 90-FZ.Article 239. Circumstances excluding the financial liability of an employee
The employee's financial liability is excluded in cases of damage arising due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to provide adequate conditions for storing property entrusted to the employee.Article 240. The employer’s right to refuse to recover damages from an employee
The employer has the right, taking into account the specific circumstances in which the damage was caused, to fully or partially refuse to recover it from the guilty employee. The owner of the organization's property may limit the specified right of the employer in cases provided for by federal laws, other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation, regulatory legal acts of bodies local government, constituent documents of the organization.Article 241. Limits of employee’s financial liability
For damage caused, the employee bears financial liability within the limits of his average monthly earnings, unless otherwise provided by this Code or other federal laws.Article 242. Full financial liability of the employee
The full financial liability of an employee consists of his obligation to compensate for direct actual damage caused to the employer in full. Material liability in the full amount of damage caused may be assigned to the employee only in cases provided for by this Code or other federal laws. Employees under the age of eighteen bear full financial liability liability only for intentional damage, for damage caused while under the influence of alcohol, drugs or other toxic substances, as well as for damage caused as a result of a crime or administrative violation.Article 243. Cases of full financial liability
Financial liability in the full amount of damage caused is assigned to the employee in the following cases:1) when, in accordance with this Code or other federal laws, the employee is held financially liable in full for damage caused to the employer during the performance of the employee’s job duties;
2) shortage of valuables entrusted to him on the basis of a special written agreement or received by him under a one-time document;
3) intentional infliction of damage;
4) causing damage while under the influence of alcohol, drugs or other toxic substances;
5) damage caused as a result of the employee’s criminal actions established by a court verdict;
6) damage caused as a result of an administrative violation, if established by the relevant government body;
7) disclosure of information constituting a secret protected by law (state, official, commercial or other), in cases provided for by federal laws;
8) damage caused while the employee was not performing his job duties. Financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the deputy heads of the organization, the chief accountant.
Article 244. Written agreements on the full financial responsibility of employees
Written agreements on full individual or collective (team) financial liability, that is, on compensation to the employer for damage caused in full for the shortage of property entrusted to employees, can be concluded with employees who have reached the age of eighteen and directly service or use cash, commodity values or other property .Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms these agreements are approved in the manner established by the Government of the Russian Federation.Article 245. Collective (team) financial liability for damage
When employees jointly perform certain types of work related to the storage, processing, sale (release), transportation, use or other use of valuables transferred to them, when it is impossible to differentiate the responsibility of each employee for causing damage and to conclude an agreement with him on compensation for damage in full, collective (team) financial liability may be introduced. A written agreement on collective (team) financial liability for damage is concluded between the employer and all members of the team (team). Under an agreement on collective (team) financial liability, values are entrusted to a predetermined group of persons, to whom full financial responsibility for their shortage is assigned. To be released from financial liability, a member of a team (team) must prove the absence of his guilt. In case of voluntary compensation for damage, the degree of guilt of each member of the team (team) is determined by agreement between all members of the team (team) and the employer. When collecting damages in judicial procedure the degree of guilt of each member of the team (team) is determined by the court.Article 246. Determination of the amount of damage caused
The amount of damage caused to the employer in the event of loss and damage to property is determined by actual losses, calculated on the basis of market prices prevailing in the area on the day the damage was caused, but not lower than the value of the property according to accounting data, taking into account the degree of wear and tear of this property. Federal law may a special procedure will be established for determining the amount of damage subject to compensation caused to the employer by theft, intentional damage, shortage or loss of certain types of property and other valuables, as well as in cases where the actual amount of damage caused exceeds its nominal amount.Article 247. The employer’s obligation to establish the amount of damage caused to him and the cause of its occurrence
Before making a decision on compensation for damage by specific employees, the employer is obliged to conduct an inspection to establish the amount of damage caused and the reasons for its occurrence. To conduct such an inspection, the employer has the right to create a commission with the participation of relevant specialists. Request from the employee written explanation to establish the cause of damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, an appropriate act is drawn up. (Part two as amended by Federal Law of June 30, 2006 N 90-FZ) The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in accordance with the procedure established by this Code.Article 248. Procedure for recovery of damages
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. 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, then recovery can only be carried out by the court. If the employer fails to comply established order In order to recover damages, the employee has the right to appeal the employer’s actions in court. An employee who is guilty of causing damage to the employer may voluntarily compensate it in full or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who has given a written undertaking to voluntarily compensate for damage, but refused to compensate for said damage, the outstanding debt is collected in court. With the consent of the employer, the employee can transfer to him equivalent property to compensate for the damage caused or correct the damaged property. Compensation for damage is carried out regardless of bringing the employee to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.Article 249. Reimbursement of costs associated with employee training
In case of dismissal without good reasons Before the expiration of the period stipulated by the employment contract or training agreement at the expense of the employer, the employee is obliged to reimburse the costs incurred by the employer for his training, calculated in proportion to the time actually not worked after completion of training, unless otherwise provided by the employment contract or training agreement.Article 250. Reduction by the labor dispute resolution body of the amount of damage to be recovered from the employee
The labor dispute resolution body may, taking into account the degree and form of guilt, the financial situation of the employee and other circumstances, reduce the amount of damage to be recovered from the employee. The amount of damage to be recovered from the employee is not reduced if the damage was caused by a crime committed for personal gain. PART FOUR