Situations when the employer transfers to the employee's account an amount greater than that provided for by the employment contract and other documents are not uncommon in labor practice. Usually the issue of returning extra money is resolved through negotiations, but there are times when the employee does not make concessions. In what cases does the employer have the right to withhold money from the next salary, and when it is not possible to get money from the employee even through the court — in the material aif.ru.
In what cases can an employer withhold an overpayment from future receipts?
The grounds that allow an employer to forcibly withdraw their money back are listed in Art. 137 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation) — there are five of them:
1. You can withhold part of the vacation pay if the employee left before the end of the year for which he had already “taken off” vacation.
2. You can keep part of the advance if the employee has not worked the required number of days.
3. You can withhold money that the employee has not reported spending, such as travel expenses.
4. You can keep the money if the accountant made a mistake in the calculations — added the wrong amounts or made a mistake in a comma, etc.
5. If the employee's salary depends on meeting the standards, you can withhold part of the income if the standard is not met.
How much can an employer withhold at a time?
Labor legislation sets limits on the amount that an employer can immediately deduct from the next payment — no more than 20% of the accrued. That is, if the overpayment amounted to five thousand rubles, and the employee is credited, for example, with an advance payment in the amount of ten thousand rubles, then no more than two thousand rubles can be withheld as a refund of the overpayment.
Can the employee return the overpayment voluntarily?
Of course. Regardless of the reasons for the overpayment, the employee and the employer can agree on a voluntary refund. In this case, the employer needs to notify the employee in writing that extra money has been credited to his account, explain the reasons for the overpayment, indicate the possibility/impossibility of withholding funds forcibly in accordance with labor legislation. At the end of the letter, it is necessary to ask to consider the issue of returning the overpaid amount and to inform about the decision. The employee, in turn, may, in the form of an application, allow the employer to withhold money from the next salaries and other payments, or inform that he will return the money to the organization's cash desk in a specific period.
Can an employer count on a refund if he overpaid an employee upon dismissal?
Only if the employee was paid more at the time of dismissal due to a calculation error (arithmetic/counting error). The Ministry of Labor explained that such a mistake is called the miscalculations of accountants — instead of adding two values, they multiplied them. Naturally, in the modern world, almost no one counts salaries and other payments manually — employers have switched to special software that makes calculations. In this regard, in case of overpayment, it is necessary to establish what kind of mistake was made: counting or technical — if technical, and the employee refuses to return the money, then even through the court they will not be able to return.
The courts refer to technical errors due to which the employer will not be able to return the money: typos, double payments, entering erroneous information into the payroll program, misinterpreting the law or internal acts of the company on salary/bonuses, etc.
If an accounting error occurs, the employer must notify the employee in writing of the incident and indicate the deadline for the return of funds. If the employee does not voluntarily repay the debt, the employer has the right to issue an order to withhold money from future receipts. Mandatory condition: the employee must be familiar with the order and indicate that he agrees with the procedure and the amount of deduction. If an agreement is not reached between the employee and the employer — the employer can only go to court to return the overpaid money. In court, he will have to prove that the reason for the overpayment was precisely the counting error — otherwise, the court will side with the employee.
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