Downsizing payments. Downsizing payments. Compensation, payments, benefits: what is due to an employee with a reduction in staff

To begin with, we will give a definition of severance pay and indicate the cases in which it is charged.

This allowance is an accrual made by the employer in favor of an employee who has stopped working in a company to reduce the number or staff.

This is the main condition for accrual.

If a specialist leaves the company not at the request of the organization's management, but, for example, for a gross violation - in other words, "under the article" - such compensation will not be assigned to him.

The employee must be notified 2 months before the term of dismissal, and also familiarized with the list of free suitable vacancies, if any.

Payments accrued to an employee upon dismissal under paragraph 2 of Article 81 of the Labor Code of the Russian Federation include:

• financial compensation for unused vacation;
• basic severance pay;
• the amount of average earnings received by an employee while working in the company;
• if, by mutual agreement between the employer and the employee, the latter is dismissed early due to a reduction, he is entitled to additional compensation.

Severance pay is an amount equal in value to the average value of earnings received by an employee while working in a company.

This payment is made so that the employee, after the reduction, has a means of subsistence and has the opportunity to find another job.

It should be noted right away that these guarantees are provided only to individuals who are officially employed under an employment contract.

Also, severance pay is not assigned if there is a reduction in the position for which the employee is registered in combination.

This is due to the fact that the specialist loses only one of the jobs, while maintaining a job in the company. The main position remains with him.

How is redundancy benefit paid?

When paying severance pay and related compensation, the first and main document is an order to make accruals to an employee in connection with dismissal under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

But besides it, the procedure for payments during the reduction of an employee cannot be implemented if there are no additional official papers.

So, how is severance pay paid in case of reduction?

Since severance pay is calculated from wages and the number of working days, to calculate the total amount you will need:

• the staffing table of the company, according to which the number of working days is determined;
• position on wages;
• employment contract.

The latter also determines by what coefficients the severance pay will be calculated.

In some cases, the company provides employees with additional guarantees in the form of increased severance pay compared to the standard established by law.

The length of the contract also affects the amount of payment. If there is a fixed-term contract, the validity of which does not exceed two months, the need to accrue severance pay is determined by the internal documents of the company and the terms of the employment contract.

Terms of payment of severance pay in case of reduction

Financial accruals do not have to be done completely in one day. The term of payments for the reduction of an employee, in particular, may be on the day of dismissal. The employer is required to make the following types of payments:

• wages of the dismissed employee;
• monetary compensation for unspent vacation;
• the main severance pay, in no way tied to further employment and equal in size to the average monthly earnings of the employee.

After termination, within the first month, the redundancy compensation procedure does not include the payment of additional benefits to the former employee.

In some organizations, when concluding an employment contract, the employer prescribes a condition for reducing the state in advance, because the procedure for paying severance pay upon dismissal may include an increased severance pay.

In this case, the management of the organization is obliged to fulfill the terms of the contract and pay exactly the increased severance pay, and not the minimum standard.

Another feature concerns seasonal workers. For them, the size of the severance pay is the value of the average earnings for 14 days.

Let's highlight the calculation of payments related to the release of an employee from work duties to reduce:

1. There are no changes to wages.- Salary, as well as additional bonuses and allowances. The employer does not have the right to cancel due to reduction.
2. Average earnings are calculated as the arithmetic mean- the sum of all accrued salaries for 12 months is taken and divided by the number of months.
3. For severance pay- the amount of average earnings is multiplied by the number of paid days. Weekends and holidays when the employee was not working are deducted from the calculation.
4. Vacation compensation is calculated from the value of the worked period. If an employee was engaged in temporary work that takes no more than a couple of months, 2 days are supposed to work for a month.

Example

Let's look at how payments occur when an employee is laid off using an example.

If a specialist received 15,000 rubles a month and worked 250 days a year, his average earnings per day would be:

(15000 * 12) / 250 \u003d 720 rubles.

Since he is entitled to severance pay, calculated from the standard work schedule, the resulting figure is multiplied by the number of working days per month. When running 5/2 it would be:

720*23=16560 rubles.

What to do next as a specialist after dismissal?

As mentioned above, after receiving the basic payments on the day of the reduction, the dismissed specialist is given a month to look for a job.

At the same time, he must register with the employment services within the first fourteen days after the expiration of the employment contract. Otherwise, an individual will be denied additional benefits if a new job has not been found.

If, after a two-month period has passed from the moment of dismissal for reduction, the former employee brings a work book to the company, where there will be no record of new employment, he will need to write an application for an additional payment.

The employer, on the other hand, will need to provide the reduced employee with the amount of average earnings for the time of job search and employment.

In the case when the employee got a job during the second month, he is entitled to a payment in a smaller amount. Its value is calculated from the number of days that have passed before a new job is received.

The provision of this allowance is regulated by article 178 of the Labor Code of the Russian Federation, part 1.

In some situations, an employee may require severance pay for the third month after dismissal.

How is redundancy compensation calculated? Receipt of this compensation is permissible only if there is a document issued by the employment service and confirming that the employment center could not employ the registered individual.

Severance pay cannot be considered wages. For this reason, the payment terms do not have to be tied to the date of receipt of the salary according to the regulations of the company. The terms of accruals are agreed with the former employee.

The dismissal of an employee at the initiative of the employer differs from leaving at will by the increased number of obligations of the organization to the former employee.

Since it was the company that caused the loss of a job and a stable income for an individual, it needs to be responsible for respecting the rights of the worker.

Severance pay acts as a guarantee that the former employee will have a livelihood until such time as he, with the help of the employment service, finds himself a new job.

Upon dismissal in connection with the reduction of citizens in accordance with the norms of Article 77 of the Labor Code of the Russian Federation and other requirements of labor legislation, termination of the employment contract drawn up earlier is provided. In addition, the parties have the right to draw up an agreement based on the application of the rules of Article 78 of the Labor Code of the Russian Federation. After that, mutual settlements between the employee and the employer are required.

Labor Code of the Russian Federation, Article 78. Termination of an employment contract by agreement of the parties

The employment contract may be terminated at any time by agreement of the parties to the employment contract.

In addition, persons dismissed due to a reduction in the number of staff, which is allowed by the norms of Article 81 of the Labor Code of the Russian Federation, have the right to claim severance payments upon dismissal due to a reduction in staff. These are provided in an amount proportionately calculated from the amount of previously received wages.

So, what payments for the reduction of an employee are due to the dismissed person and what compensation is due for a reduction in staff?

The employer must compensate for the period of forced downtime and adaptation when moving to a new job.

Consists of the following main components:

• earnings for days worked;
• compensation for unscheduled vacation;
• additional compensation;
• allowance for the period of employment.

ATTENTION: Accruals cannot be less than one minimum wage (minimum wage) calculated for the worked period of time.

Part of these funds is issued immediately after the dismissal, and part remains as a potential opportunity to receive payments in case of redundancy and compensation under appropriate accompanying circumstances, which will be discussed below.

Payments in case of reduction of an employee on the day of dismissal

The day of dismissal is considered the last working day, which is established by order on the basis of the provision on staff reduction or by an agreement drawn up by the parties. Regulated by the provisions of article 79 of the Labor Code of the Russian Federation. On this day, upon request, the employee is provided with a completed work book and payment of severance pay upon dismissal due to redundancy.

What is severance pay when an employee is made redundant? Severance pay in the event of a reduction in the staff of employees - accruals provided only for persons officially employed by the employer - with the conclusion of an employment contract and execution of a work book. They include the amount for the working days worked, allowing the accrual of bonuses and other payments to the employee in case of staff reduction.

To them, the accrual of compensation payments is summed up when the employee is reduced for non-vacation days. When an employee is made redundant, severance pay is accrued as additional compensation or compensation for unforeseen risks upon dismissal.

Earnings for working days - is always accrued, even if the employee worked as a part-time worker, seasonal worker, etc.

This is an essential element of severance pay, which consists of accrual of earnings or part of earnings, commensurate with the established labor contract.

When accruing it, the accountant calculates the number of worked, but not paid earlier working days.

Their number is multiplied by the amount of daily earnings. If the agreement of the parties specifies the payment of bonuses, then they are accrued in proportion to the number of days worked.

In the absence of an agreement between the parties, such an initiative may be taken by the employer, or rely on previously established provisions of the employment contract or other regulations and trade union documents.

Compensation for unused vacation - accruals made in favor of permanent employees for whom the provisions of labor legislation provide for annual leave. Their size depends on:

• the number of non-holiday days;
• average earnings.

The number of days payable depends on the number of months that have passed since the end of the previous vacation and the length of the vacation period. For example, a specialist is entitled to a vacation of 24 working days - this is 2 calendar days accumulating in each month.

Accordingly, if the dismissal took place 8 months after the specialist left the vacation, he is supposed to pay 16 working days in the form of the indicated compensation.

Additional compensation - accruals that are issued to persons who draw up an agreement on termination of an employment contract. Their volume is regulated by the provisions of the agreement or at the discretion of the employer.

IMPORTANT: An employer may provide additional compensation in case of a reduction in the number or staff of employees, but is not obliged to do so. Accordingly, the resigning person is not entitled to claim this type of payment.

Additional payments of compensation in case of reduction of an employee can be paid both at a time and in installments, in a mode convenient for the parties. The amount needs to be clearly defined in the terms of the agreement.

Average earnings for the period of employment - these accruals are provided in all cases when, at the initiative of the employer, a person conscientiously performing functional duties is dismissed.

As the average earnings, a commensurate earnings for the last year is used, from which social insurance payments are deducted - for being on sick leave, on maternity leave, etc.

If, as a result of calculating average earnings, it turns out to be lower than the minimum wage provided for by law, it should be raised to the established minimum amount.

The received average earnings are calculated in the amount of the number of working days calculated for two months. At the discretion of the employer, if the dismissed person was previously charged a fixed salary, a two-month salary is allowed.

Contributions and taxes. In the Labor legislation, upon dismissal of citizens to reduce the number of staff, the norms of article 178 of the Labor Code of the Russian Federation come into force, which cancel the force of articles 208,, 212 of the Tax Code.

That is, there is no tax withholding in this case. However, Article 178 establishes limits on the amount of payments upon dismissal due to redundancy, and the remaining funds that exceed the established standards are taxed in the general manner.

In established cases, contributions to the Social Insurance and Pension Funds are deducted from the average daily earnings and vacation pay compensation.

In what cases is it necessary to accrue benefits for the second month?

Sometimes an employment contract or a collective labor agreement, as well as other regulatory acts of personnel production, provide for the accrual of benefits in the second month after dismissal. For the second month, compensation payments for dismissal due to staff reduction are provided to the dismissed person as material support for the period of protracted adaptation after the reduction.

Such a legal precedent is admissible within the framework of Article 178 of the Labor Code of the Russian Federation. The benefit is paid only on the condition that the employee dismissed due to the reduction in the number of staff could not find a job due to objective circumstances beyond his control.

These accruals are made from the budget of the employer, in the amount of the average monthly salary or base salary. It is allowed to calculate the average daily earnings, without accruing bonuses and minus the payment of insurance benefits, but not less than the minimum wage.

Additional payments in case of staff reduction for the second month are provided regardless of the fact that the dismissed person has already received compensation in the amount of two months' salary (average earnings).

It is also allowed to receive additional compensation if it was provided for by agreement of the parties and postponed to the second month.

How to get paid for the third month?

If an employee dismissed due to staff reduction could not find a job within two months, then the third month can also be paid. In this case, it is impossible to demand mandatory payment by the employer for forced absenteeism.

This will require an official application from the Employment Service. For persons not registered with the local office of the Employment Service, such benefits are not provided..

What is required for an employee to be made redundant? After submitting a formal petition, handed over to the former employer and attached to the application written in his own hand, the employer calculates the last payment provided as a severance pay for the employee who was dismissed by him.

Its volume also focuses on the average monthly earnings provided for the second month of involuntary unemployment.

REFERENCE: If the recipient of the allowance found a job within a month, then payment is allowed with a reduction in only the period (number of days) when he was not employed.

For more information on severance pay for downsizing, see this video:

Unemployment benefits

In the subsequent period, a citizen who has not found a job due to a reduction in staff, draws up unemployment benefits.

To do this, you need to register with the local branch of the employment service, write an application and attach documentation:

1. passport;
2. diploma, certificates and other documents on education (qualifications);
3. a certificate of average earnings from a former employer;
4. work book.

The benefit is accrued after registration at the employment exchange as unemployed, but not earlier than the day until which the unemployed person receives benefits and other compensation from the employer.

The amount provided for payment as an allowance to the unemployed is provided by decision of the administrative commission, in amounts from 850 rubles to 4,900 rubles. Payments are accrued from the regional budget, so the regional coefficient can be added to the base amounts.

In terms of duration, the payment of benefits is guided by objective reasons and is made:

1. until the moment of official employment through the exchange or through independent searches.
2. If a citizen cannot find a job despite the good faith actions of the inspectors of the SZ - until the moment of a three-time unreasonable refusal from a suitable job provided to him.
3. If a citizen does not come to the inspector supervising him without warning of a good reason within a month.
4. Until you go on parental leave when social benefits begin.
5. Until the receipt of other subsidies and benefits that can be considered as income. This includes old-age or disability pensions.
6. Before being called up for military service.

REFERENCE: Full-time students who do not receive a scholarship do not receive unemployment benefits.

What is the amount of each allowance?

The amount of the due payment when an employee is laid off depends on the following concomitant reasons that affect the amount accrued:

• salary (other income);
• the number of days timed as vacation days;
• payment provisions included in the agreement;
• employer's decision.

In the second and third months, the amount of the allowance focuses only on average earnings (salary).

The employment exchange calculates benefits based on various nuances. Redundant employees who register as unemployed in a timely manner may qualify for the maximum benefit.

What if the employer does not pay compensation for redundancy?

The procedure for paying compensation upon reduction is governed by the provisions of article 13 of the Labor Code of the Russian Federation. The calculation and issuance of the required severance pay is provided to citizens on the last working day, which is considered the day of dismissal.

This procedure is supplemented by Article 140 of the Labor Code of the Russian Federation, which allows the issuance of a settlement allowance later, but for reasons of a valid absence of the dismissed person on the day appointed for issuance.

Labor Code of the Russian Federation, Article 140. Terms of calculation upon dismissal

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.
In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article.

ATTENTION: The absence of an employee on the day of dismissal at the workplace without a good reason allows for the imposition of a disciplinary sanction, with a review of the grounds for dismissal.

Any violation of the established regulations by the employer is considered as a violation of labor legislation. Basically, such actions are divided into two types:

• violation of the terms of issue;
• arrears in the calculation.

The civil property rights of employees are protected by the following authorities, which can intervene in the unfair actions of the employer. Among them:

• trade union;
• State Labor Inspectorate (STI);
• prosecutor's office;
• arbitration or civil (general jurisdiction) court.

In case of arrears during accrual, the employee is required to receive the accrued amount in his hands, and for the remaining (claim) amount, file a notifying claim with the manager, with a warning about the intention to appeal.

If the calculation is not issued on the last working day, at the end of the working day it is permissible to submit a notification, also addressed to the head of the organization.

At the same time, you can contact the trade union organization at the place of work by writing a statement about the violation of labor rights addressed to the chairman.

IMPORTANT: The submitted notification documents must be registered by a specialist of the general department or handed over against signature, which is put by an authorized official on the second copy.

If the applicant does not receive an immediate response, with a certificate from the head of the restoration of his violated rights, the next day he can file a complaint with the STI. If the unfair actions of the employer do not stop, it is permissible to contact the prosecutor's office.

In another case, when the employer has set a deadline for the restoration of the violated rights of the employee, but has not corrected the violations, it is advisable to file simultaneous complaints with the STI and the prosecutor's office.

Going to court is an extreme measure that is applied after preliminary attempts to resolve the issue out of court. You can go to court:

1. if the consideration of the complaint in the STI and the prosecutor's office is rejected, within 10 days after receiving a reasoned refusal.
2. If these authorities did not find violations, then within 10 days after receiving an extract from the decision of the inspector or prosecutor's check.

The statement of claim is written in the form established or 131 Code of Civil Procedure of the Russian Federation. Served at the place of the defendant's legal address, which will be the employer (Article 35 of the APC, 28 of the Code of Civil Procedure of the Russian Federation).

Arbitration Procedure Code of the Russian Federation, Article 35. Bringing a claim at the location or place of residence of the defendant

The claim is brought to the arbitration court of the constituent entity of the Russian Federation at the location or place of residence of the defendant.

Article 28

The claim is brought to the court at the place of residence of the defendant. A claim against an organization is filed with the court at the location of the organization.

In certain cases, the material is submitted to the court by the STI inspector or the prosecutor.

Employer's responsibility

On the basis of Article 236 of the Labor Code of the Russian Federation, penalties may be imposed on the head of the company based on the results of an inspection and prosecutorial audit, including with an entry in a personal file.

In addition, dishonest attitude to the performance of functional duties, which led to the violation of the rights of members of the labor collective, leads to the imposition of penalties.

The fines vary.

In case of a malicious violation of the rights of workers, on the basis of abuse of official duties, criminal liability is allowed.

In this case, an official guilty of violations may, by a court decision, not only pay a fine, but also receive a restriction on the management of the organization.

All fines and other types of punishment imposed on the employer do not cancel the responsibility to pay the required severance pay to the employee.

Incorrect (downwards) accrual of benefits or their timely failure to provide them are considered dishonest actions of the employer and require the defense of their legal rights.

The article contains the main provisions that will help determine the amount of severance pay due.

To begin with, it is necessary to understand the main theoretical issues that are affected by the reduction procedure.

It is necessary to clearly understand the difference between downsizing and downsizing. So, the number of employees is the entire payroll of employees of a particular enterprise. If we are talking about a reduction in the number of employees, then the number of employees in a certain position decreases. For example, it is necessary that there are two engineers in the enterprise instead of the current ten.

It is customary to refer to the staff of employees all employees of the managerial and administrative level at a particular enterprise. When reducing staff, the same positions or employees of the entire reduced unit should be excluded from the staffing table. When it comes to reducing a certain staff unit, not one employee is fired, but everyone who, according to the staffing table, performs work in a certain position.

Layoff to reduce staff: who cannot be laid off

The loss of a job entails an inevitable deterioration in the financial situation. Therefore, the law introduced restrictions on the application of such a step to socially vulnerable workers.

The employer does not have the right to reduce:

1. Single mothers raising children under 14 years of age. If the child is disabled, the single mother will be able to continue working until the dependent reaches the age of majority.
2. If a parent is deprived of the right to bring up, the person replacing her - a single father, guardian - falls under the protection of the law.
3. All women raising children under the age of three.
4. The sole breadwinner in a family with a disabled child under 18 years of age.
5. Women on maternity leave.
6. Workers who have received an industrial injury and mutilation at this enterprise.
7. Disabled due to military trauma.
8. Employees who are on vacation or in treatment for temporary disability.

If a large-scale optimization is planned, when there are several applicants for the positions to be left, the preferential procedure for maintaining jobs comes into effect.

Priority is given to:

1. High performance workers.
2. Professionals of the highest category.

If employees are equal, then their family and social status is considered. The advantage is guaranteed:

• family employees with two or more dependents;
• persons - the only able-bodied in the family;
• employees who have received occupational diseases during the period of work;
• undergoing qualification retraining in the direction of the employer without interrupting the production process.

When reducing personnel to 18 years of age, the employer must obtain permission from the state labor inspectorate and guardianship authorities ().

Deadlines for redundancy

The law does not allow layoffs without warning. The employer is obliged to warn candidates about an unpleasant event 2 months in advance in writing. Starting in 2016, in the notice, the employer offers ways to avoid layoffs: for example, working on a reduced schedule. For seasonal workers, labor legislation provides for a different notice period - 7 days ().

At the same time, at least formally, the person being reduced should have a choice: the employer offers employees alternative employment options (Article 180 of the Labor Code). At the same time, the vacancy must correspond to the qualifications of the employee, but the level of payment may be lower.

If mass optimization is expected, the administration of the enterprise should notify the employment service, and if there is a trade union association, coordinate all aspects of optimization with representatives of labor interests.

Downsizing: Compensation in 2019

Severance pay is not the only amount that a person will receive upon dismissal. So, he is entitled to some additional compensation.

For example, if an employee notified according to the rules expresses a desire to leave the enterprise ahead of schedule, then he informs the employer about this, and he, in turn, must calculate an additional amount in the form of compensation for the time that he did not use after notification. Those. if the dismissed employee, after notification, worked 5 days (instead of 2 months) and expressed a desire to be dismissed earlier, he must receive additional compensation in the amount of average earnings for the time not worked before the end of the notification period in the event that the employer agrees to release him in advance. Also, be sure to make sure that you are paid earnings for the time worked at the company, as well as unused vacation (if it really was not used).

Severance pay for redundancy

Severance pay, as well as other payments, must be transferred to the employee on his last working day. The same time is set for the transfer of the work book.

What is severance pay? This is the payment of a certain amount of money to a dismissed employee from an enterprise that optimizes the number of employees through a reduction procedure.

Severance pay includes the amount of average earnings per month, taking into account additional deductions. Also, the employee is entitled to similar amounts for the next two months after dismissal until the moment of employment (the calculation is made taking into account the amount of severance pay). In exceptional cases, the employee will be paid for the next three months after the dismissal (within 2 weeks from the date of official dismissal, the employee registered at the labor exchange).

The amounts due to an employee as a severance pay, on the basis of paragraph 3 of paragraph 217 of Article 217 of the Labor Code of the Russian Federation, are not taxed, except for the case when the amount of payments exceeds 3-month average earnings.

The calculation of the average earnings due for payments is made on the basis of Article 139 of the Labor Code of the Russian Federation, as well as the Decree of the Government of the Russian Federation dated December 24, 2007, serial number 922. The billing period is 12 calendar months preceding the day of dismissal. When the average amount is displayed, the entire earnings of a person are taken into account based on how much was actually accrued to him.

In the amount of average earnings must be taken into account:

1. Premium and bonus payments, remuneration. No more than one type of additional remuneration for one month during the calculated period is taken into account. If there are more bonus amounts, then you can take them into account in the month where they were not;
2. Remuneration at the end of the year, in connection with the length of service, length of service, etc.;
3. Other payments included in the amount of monthly earnings.

The main rule of action to withdraw the amount of average earnings: it should not be lower than the subsistence minimum threshold established in the country on the day of dismissal.

Companies are required by law to recalculate wages. Find out if the indexation of vacation pay can not be recalculated for all employees. The deadline for paying maternity pay is clearly established by law. See when the money is due.

If the employee to be laid off has not worked for 12 months at this enterprise, then the entire period of working off must be taken into account when calculating the amount. If the time of work was not even one month, then for the calculation it is necessary to take the amount of his tariff rate or official salary.

The following periods are not taken into account in the calculation of the average monthly earnings:

• when the employee did not receive the entire amount worked out, but only the average wage for his labor (such periods cannot include the time when a woman, in accordance with the Labor Code of the Russian Federation, can leave her workplace to feed her child);
• sick leave time, as well as social leave provided in connection with the state of pregnancy and childbirth;
• when the employee was not at the workplace due to circumstances beyond his control;
• when the strike took place (the employee did not participate, but could not work);
• additional time provided to a person for the care of a disabled child;
• time when the employee for some other reason was not at his workplace.

Earnings include all payments from the employer, including bonuses, in-kind products, and other payments.

sick pay

The reduced employee is entitled to paid sick leave. Basic conditions:

• the citizen fell ill before the official day of dismissal. The amount of the payment depends on the length of service and the average salary;
• sick leave received within 30 days after the reduction. The allowance is equal to 60% of the average wage for the last two years. If a citizen is registered with the employment service, it is equivalent to unemployment benefits.
• sick leave issued to a pregnant woman officially recognized as unemployed within a year after her dismissal in connection with the liquidation of the company.

Payment of a sick leave is not a basis for refusing to issue other payments for dismissal due to redundancy.

Holiday compensation

Compensation for unused vacation upon dismissal is calculated according to the general rules. That is, the fact that this compensation is due to be paid in connection with the reduction of staff does not matter. Therefore, we will not describe in detail the calculation procedure in this article. Just apply this formula to the calculation (Article 127 of the Labor Code of the Russian Federation)

Compensation for unused vacation = number of unused vacation days X average daily earnings.

At the same time, we recommend paying attention to the peculiarities of calculating leave compensation upon dismissal for those who have worked less than a year, but more than five and a half months. When calculating compensation in such cases, determine the number of unused vacation days according to the formula (Letter of Rostrud dated 03/04/2013 No. 164-6-1):

Number of unused vacation days = length of annual vacation - number of vacation days used

It turns out that if the employee worked for five and a half months or more and was not on vacation, then when layoffs due to downsizing he is entitled to compensation for full leave.

Payment of the 13th salary in case of reduction

Such a bonus as the 13th salary is available at many enterprises. Employees, not knowing their rights well, sometimes do not even realize that when they are laid off, the employer must pay this bonus to the dismissed person. Even if the reduction occurs in the summer. True, this is only possible if the person has worked in the company for at least a year.

Early retirement

Video about the rights of the employee during the reduction:

If the former employee is employed in the middle of the second month, the benefit is calculated in proportion to the time during which the employee was not employed.

At the end of the third month. For the third month, the average earnings for the period of employment are paid to the employee only if (part 2 of article 178 of the Labor Code of the Russian Federation):

• within two weeks from the date of termination of the employment contract, he applied to the employment service at the place of his registration and was registered;
• within three months after the dismissal was not employed by the employment service.

If these conditions are met, after the end of the third month, the employment service will issue the employee with an appropriate document, upon presentation of which the employer will have to pay him the average earnings for the period of employment (for the third month after dismissal).

The payment of average earnings for the period of employment is not wages, so it is not necessary to pay it within the time limits established by the company's local regulation for the payment of wages. Payment of amounts can be made after the second and third months on the days agreed with the former employee.

Benefit Taxation

The Tax Code determines that the amount of the severance pay, payments for the second and third months after the reduction, as well as compensation for dismissal before the fixed deadline of the organization may be included in the number of "salary" expenses when determining the tax base.

This can be done both by companies under the general regime, which pay income tax, and by "simplifiers", who consider the tax according to the "Income minus expenses" system.

Also, these payments will not be subject to personal income tax and social contributions, but only if they are within the limit established by law. This point of view is expressed by the Ministry of Finance in its letters.

The following is used as a limit for such an operation:

1. Three times the average earnings for workers in ordinary climatic conditions;
2. The average salary is six times the amount for employees who work in the Far North and equivalent territories.

This limit is uniform, and its size does not depend on the position, salary and other features.

If the total amount of compensation exceeds the specified limit, then personal income tax must be withheld from the amount of excess and insurance premiums must be calculated.

How to get paid

A reduction in staff carried out in accordance with all the rules is a guarantee of receiving severance pay. The employee is advised to carefully study all the documents that he signs and familiarize himself with the labor legislation in order to prevent violation of his rights.

Registration

The accounting department of the employer is responsible for the registration and calculation of compensation for reductions and other charges. The allowance is paid on the basis of an order, which indicates its amount and the reason for dismissal. A corresponding entry is made in the work book with reference to the article of the Labor Code of the Russian Federation.

Where are they paid

All due payments for dismissal due to a reduction in the number of employees are made by the former employer. However, in order to receive benefits for the third month, a citizen must contact the employment center and take a certificate confirming the lack of work. The document is submitted to the accounting department, and only after that compensation is calculated for the third month.

Payment for sick leave after reduction is carried out by the Social Insurance Fund.

Pregnant women receive maternity payments through the employment center in accordance with the Order of the Ministry of Health and Social Development dated December 23, 2009 No. 1012n.

Unemployment benefit for the second and third month

If you are on a redundant or redundant layoff, then know that you have the right to keep your average earnings for two consecutive months after the day you were officially fired. This rule is valid until the moment of official employment, but no more than two months after dismissal. Thus, the unemployed person has some guarantees provided for him by the state, in order to provide him with a certain amount of money until he gets a new job.

If an employee, within two weeks after the dismissal, applied for employment at the Employment Center, then he can count on one more month of subsidies from the former employer (in case he did not find a job).

The decision to extend the term is made by the Employment Center, and the payment is made at the expense of the former employer. This kind of additional allowance is maintained until the person officially finds a job (during these 2-3 months). As soon as a citizen finds a new job, payments stop. If a person started a new job in the middle of the month, the previous employer only compensates for unemployed time.

List of documents when paying benefits for the third month:

1. The decision of the employment authority.
2. Employment book (where there will be no work records at present).
3. Passport.

If you do not find a job within 30 days after the dismissal or fall ill, the organization will be required to pay sick leave.

Reduction payments, if you need to dismiss staff ahead of schedule

In all cases, the employer is obliged to notify the employee about the upcoming reduction at least two months before the dismissal (part 2 of article 180 of the Labor Code of the Russian Federation). During these two months, the employee must continue to work. However, the parties may agree that the employee will leave earlier. allows you to do this. In this case, the employee is entitled to additional compensation. It is paid to the employee, regardless of the payments provided for in Article 178 of the Labor Code, upon dismissal due to a reduction in the number of employees.

Supplementary early termination compensation is intended to compensate the employee for the loss of earnings that he or she could have received by continuing to work until the date of termination specified in the notice.

The amount of additional compensation for early termination of employment is not limited to two months of average earnings, but depends on the actual length of the period between the actual date of termination of the employment contract and the date of dismissal indicated in the notice issued to the employee.

Additional compensation payment upon reduction is calculated by the formula:

The average daily wage for this case is calculated by dividing the amount of allowable payments actually accrued for the billing period by the number of days actually worked during this period (paragraphs 2 and 3, clause 8 of the Regulation on average earnings).

What to do if the employer does not pay severance pay

If an employee is not receiving benefits after a layoff is made, they can file a complaint:

• to the labor inspectorate;
• to the prosecutor's office;
• to the judicial authority.

Initially, an employee can file an application with the labor inspectorate or the prosecutor's office. They will appoint an inspection of the employer, and when the fact of violation is confirmed, they will impose an administrative fine and an order to pay the debt. If this does not help, and the payment will not be made, then you can collect documents for the court.

A claim against an organization must be filed at its location. The exact address can be found in the extract from the Unified State Register of Legal Entities. The court will not consider the application if it is executed incorrectly, and also does not contain all the necessary documents.

The employee is not charged for legal expenses in disputes in the field of labor law.

Employer's responsibility

If the organization does not pay severance pay upon dismissal, then it can be held administratively or criminally liable. Which one will come depends on the length of the delay.

If immediately, upon the onset of the payment day, the employer did not pay the employee, then administrative liability arises for violation of labor laws.

It includes:

• a fine for an official or an entrepreneur of 1-5 thousand rubles;
• a fine for the organization of 30-50 thousand rubles.

If this kind of violation is not committed for the first time, then the penalties increase:

• a fine for an official or an entrepreneur of 10-20 thousand rubles;
• a fine for the organization of 50-70 thousand rubles.

Administrative punishment may be imposed by the labor inspectorate or the prosecutor's office based on the results of the audit.

Criminal liability will come with a delay of 2 months:

• in case of partial non-payment for a period of 3 months or more, liability arises from a fine of up to 120 thousand rubles, to imprisonment for up to 1 year;
• in case of complete non-payment for a period of 2 months or more, liability arises from a fine of up to 500 thousand rubles to imprisonment for up to 3 years.

A period of 2 months, along with intent in case of non-payment of benefits, is the main difference between criminal liability and administrative.

Summing up

Reduction of staff requires the employer to comply with the procedure specified by law. Employees who have been made redundant should transfer all necessary cash payments and compensations on the day of dismissal. There are vulnerable categories of workers whom the law protects from layoffs.

If the employer commits illegal actions (for example, in the absence of due payments or illegal dismissal), the employee has the right to go to court.

An employment contract with an employee may be terminated by the employer, in particular, in connection with a reduction in staff. In this case, the employer warns employees about the upcoming dismissal personally and against signature at least two months before the dismissal (clause 2, part 1, article 81, part 2, article 180 of the Labor Code of the Russian Federation).

Upon dismissal of an employee in connection with a reduction in staff, he is entitled to the following payments.

Reduction payouts

When terminating an employment contract due to a reduction, the employer is obliged to pay the employee the following amounts (part 1 of article 127, part 7 of article 136, part 1, 4 of article 178, part 3 of article 180 of the Labor Code of the Russian Federation):

1) wages for the period of work before dismissal, bonuses, allowances and other payments;

2) monetary compensation for unused vacation;

3) severance pay in the amount of the average monthly salary (unless the labor or collective agreement provides for an increased amount of the allowance);

4) additional compensation in the amount of average earnings in proportion to the time before the expiration of the notice period for dismissal, if the employer dismisses the employee with his consent before the expiration of the two-month notice period for dismissal.

If the payments due to the employee are not paid on the day of dismissal or the next day after the employee submits a request for payment (if the employee did not work on the day of dismissal), the employer is obliged to pay them with interest (monetary compensation). The amount of compensation must be at least 1/150 (before October 03, 2016 - at least 1/300) of the current key rate of the Bank of Russia on amounts not paid on time for each day of delay, starting from the next day after the due date of payment until the day of actual settlement inclusive. At the same time, a larger amount of compensation may be established by a collective, labor agreement or local normative act (Art. Art. 140, Labor Code of the Russian Federation; Clause 2, Art. 2, Art. 4 of the Law of 03.07.2016 N 272-FZ).

Payments after dismissal in case of unemployment

After dismissal, if the employee is not employed, he retains the right to receive from the employer (parts 1, 2 of article 178 of the Labor Code of the Russian Federation; part 2 of article 5 of the Law of December 29, 2006 N 255-FZ):

1) payment for sick leave if the employee falls ill within 30 calendar days from the date of dismissal;

2) average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In order to receive the average monthly earnings for the period of employment, after two months after the dismissal, the employee must present to the employer a document proving the identity of the employee, an application in any form and a work book, which is a confirmation of the period of employment. The work book confirms the fact that the employee is not employed.

In exceptional cases - due to the social vulnerability of the dismissed employee, his lack of means of subsistence, the presence of disabled dependents, etc. - the average monthly salary is retained by the dismissed employee for the third month. To receive payment for the third month, formal conditions must also be met (part 2 of article 178 of the Labor Code of the Russian Federation; Determination of the Constitutional Court of the Russian Federation of November 29, 2012 N 2214-O; Determination of the Supreme Court of the Russian Federation of July 17, 2017 N 69-KG17-10) :

1) the employee, within two weeks after the dismissal, applied to the employment agency;

2) the employee was not employed by the employment agency within the third month after the dismissal;

3) in order to apply to the employer for receiving a payment for the third month, the employee must receive, for presentation to the employer, from the employment service body a decision on the right to receive this payment.

Due to the fact that payments to an employee dismissed due to a reduction in the number (staff) are made with a severance pay offset, the employer may not agree with the payment of the average monthly earnings for the period of employment for the third month (part 1 of article 178 of the Labor Code of the Russian Federation).

The wording “including severance pay” means, in our opinion, that the average earnings are paid for the second month of unemployment, since the severance pay paid to the employee upon dismissal is paid for the first month of unemployment.

Note!

Additional compensation in connection with the termination of the employment contract before the expiration of the notice of dismissal is not subject to personal income tax. Compensation for unused vacation is subject to personal income tax in full. Severance pay, as well as the amount of average monthly earnings for the period of employment, are subject to personal income tax in excess of three times the average monthly earnings (six times the amount - upon dismissal from the "northern" organizations) ( paragraph 3 of Art. 217 Tax Code of the Russian Federation; Letter Ministry of Finance of Russia dated July 31, 2017 N 03-04-07 / 48592).

Useful information on the issue

Official website of the Federal Service for Labor and Employment -

The crisis in the country due to the political situation has led many employers to the need to reduce staff costs. And, as a result - to the reduction of the workers themselves. In this situation, questions invariably arise related to the execution of documents, with the due payments and compliance with the requirements established by law.

How should the reduction procedure take place, and what are the rights of the reduced employee?

What does the Labor Code of the Russian Federation say about layoffs?

The right to determine the number of employees belongs exclusively to the employer. Moreover, the justification of the decision is not, according to the law, the obligation of the employer.
But it is obligatory to comply with the formal procedure (note 82, 179, 180 and 373 of the Labor Code of the Russian Federation).

In which case is the reduction illegal?

1. The absence of real grounds for the reduction (approx. "imaginary reduction").
2. Dismissal carried out without following the established procedure or with incorrect observance of the procedure.

Who is not entitled to be cut?

During the reduction procedure, certain categories of employees have a pre-emptive right - to be the last to be dismissed (Article 179 of the Labor Code).

Employees who are required by law to remain at work during staff reductions include:

1. Employees with 2 (or more) dependents (approx. family members supported by the employee).
2. Employees whose families have no other sources of income.
3. Employees who, in the process of working for a particular employer, received an industrial injury or an occupational / disease.
4. WWII invalids.
5. Employees who carry out advanced training in the direction of the employer inseparably from their work.
6. Employees who are on vacation - regardless of the type of vacation (the employment contract can only be terminated on the 1st day of the employee's return to work).
7. Future mothers.
8. Mothers who have babies under 3 years of age.
9. Employees who are temporarily unable to work (an employment contract can only be terminated on the 1st day of the employee's return to work).
10. Single mothers (a disabled child under 18 or a child under 14).
11. Employees raising children without a mother (a disabled child under 18 or a child under 14) are guardians.
12. Employees under the age of 18 (in the absence of the consent of the guardianship authorities).

In a situation where an employer dismisses a future mother or a single mother without knowing about these facts, the dismissal is declared illegal through the court.

Reasons and grounds for reducing the rate of an employee of an organization

Of the main reasons for the possible reduction of staff allocate liquidation company, changing the type of its activity, financial difficulties, etc.

To date the most important reason - financial difficulties (the reason is the political situation in the world, economic difficulties). Downsizing is becoming the only option for many companies to “stay afloat” and avoid bankruptcy.

The Labor Code of the Russian Federation clearly defines the grounds for layoffs:

1. Liquidation of the enterprise.
2. Termination of the activities of the firm (organization) IP.
3. Reducing the number/staff of employees. This clause is valid only if the position of the employee is liquidated.
4. The presence of employees with higher qualifications, labor productivity, etc. (evidence of qualifications must be confirmed by relevant documents).

It is worth noting that the order to reduce staff should indicate the real grounds for the reduction, according to which it is carried out.

How is the reduction of an employee carried out?

The entire downsizing procedure is divided into several stages:

Issuance of an order to reduce staff and change the staffing table

It defines a list of positions that are subject to exclusion from the staff list with the corresponding dates, as well as a list of persons who will be responsible for the reduction procedure (notifying employees, etc.).

Creation of a commission of competent specialists

She should deal with the issues of downsizing, and setting deadlines for each stage of the procedure.

Notification

Preparation of its form with full information on the reduction of positions, familiarization of employees to be dismissed with notifications against their signature 2 months before the scheduled date of termination of the contract. Already at the time of preparation of this notice, the employer must be aware of the presence / absence of the employee's preemptive right.

Jobs

The employer offers employees to be laid off all positions that correspond to their qualifications and state of health, and are available in the area where the employee performs his work duties. An employer can offer a free vacancy in another area (approx. outside the boundaries of a settlement / point) only in a situation where this is provided for by the employment contract.

It is worth noting that the dismissal of an employee to reduce staff is permissible only if the transfer of this employee to another job available to the employer (and only with the written consent of the employee himself) is impossible (Article 82 of the Labor Code of the Russian Federation). All available vacancies must be offered to the employee, both upon delivery of the notice of reduction, and up to the moment of termination of the contract). If vacancies are not provided, as well as if measures are not taken for the further employment of the employee, the dismissal will be considered illegal, and the employee himself must be reinstated in his original place.

Employment center

The employer is obliged 2 months before the termination of the contract with the employee (not less) report the reduction of the relevant position to the employment center. With mass reduction - for 3 months (at least).

This notice to the CZN must contain all the necessary data on the laid-off employees, including the conditions for remuneration for their work (profession and specialty, position held, qualification requirements, etc.).

Note: the failure to notify the central health center about the dismissal of an employee is illegal, as well as the absence of a mark on the notification received by the central health center (that is, the notification was sent to the central health center, but the employer does not have a mark about this).

union

The elected body of the trade union organization is informed about the future reduction of staff 2 months before the appointed date of termination of the contracts. In case of mass dismissal - for 3 months.

Dismissal

The publication of the corresponding order should be carried out after the expiration of the warning period for a future reduction, with the subsequent execution of all necessary documents and familiarization of the employee with them against his signature and exclusively within the time limits established by law.

After that, the employee is issued a work book, all other necessary documents, and a full payment is made (on time).

severance pay

Compensation is paid by the employer after the termination of the contract, also strictly within the time limits established by law.

Samples and forms of notifications or warnings

According to Art. 180 of the Labor Code of the Russian Federation , notification of the employee about the upcoming reduction is carried out by transferring the relevant document with a copy of the order in person or by mail 2 months before the immediate dismissal and with a mandatory offer of other vacancies for the entire period until the moment of dismissal.

Sample notice:

OOO "Petrov and K"
Forwarding driver Ivanov A.V.
The date_____

NOTIFICATION.

Dear ________ (employee full name), We inform you that on "__" _____ of the year (date) it was decided to reduce the number of employees of our company in connection with ______________ (reason for reduction) Order No. ____ dated "__" ______ year (date ). In accordance with Article 180 of the Labor Code of the Russian Federation, Petrov and K LLC warns you of the upcoming dismissal on "__" _______ _____ of the year (date) on the basis of clause 2 of Art. 81 of the Labor Code of the Russian Federation (_________ reason for staff reduction). In connection with the upcoming dismissal, Petrov and K LLC offers you a transfer to another job for the following positions:

____________ (position) _______ rub. (salary)
____________ (position) _______ rub. (salary)

If you do not agree to the transfer, you will be fired on "__" ______ _____ of the year (date). Upon dismissal, you will be provided with compensation established by Article 178 of the Labor Code of the Russian Federation and other norms of the current legislation of the Russian Federation.

General Director M.A. Klyuev.

I have read the notification and job offers in the order of transfer to other positions and received the 2nd copy.
________ (employee's signature) "___"________ ____ (date)
_____________________ (employee's opinion about the transfer to another position)

What compensations, allowances and payments can be expected for former employees of the enterprise?

The schedule of payment of benefits and its amounts are regulated Chapter 27 of the Labor Code of the Russian Federation , which indicates the guarantees and compensation due to employees when reducing the number of employees, as well as the categories of citizens who have the pre-emptive right to remain at work when the number of employees is reduced.

official dismissal day This is the last working day of the employee. The employer, regardless of the reason for the reduction, is obliged to pay the employee monetary compensation for unused vacation (or holidays), severance pay and other monetary debts, if any.

As for the average earnings, it is calculated taking into account the salary that has already been accrued to the employee, as well as the time that the employee worked in fact, including the day of reduction.

How much should be paid upon reduction, what compensation should the employee expect upon reduction?

According to the current Labor Code of the Russian Federation, in case of reduction, an employee has the right to:

1. severance pay. Size - average monthly earnings. 2-week earnings - for an employee engaged in seasonal work.
2. Saving the average monthly earnings until the employee gets a new job (limited to a certain period).
3. Other payments and compensations, in accordance with the employment contract.

How many months or salaries are redundancy benefits paid?

Preservation of the average monthly salary for the employee until the moment of employment
limited to a period of 2 months (under special conditions - up to 3-6 months).

Payment procedure:

1. Benefit for the 1st month: payment is made together with the calculation directly upon dismissal. That is, severance pay "in advance" for the 1st month.
2. Benefit for the 2nd month: payment is made after the full end of the 2nd month after the employee provides a work book without employment records for the past period. When an employee is employed, for example, in the middle of the 2nd month, the payment is made according to the period in which the employee was not employed.
3. Benefit for the 3rd month: the payment is made only in a situation where the employee did not find a job during the past 3 months after the dismissal, provided that he applied to the EPC (note at the place of registration) within 2 weeks after the dismissal and was registered in this EPC. In this case, the EPC issues an appropriate certificate to the employee, which is presented to the employer in order to receive benefits for the 3rd month.
4. Benefit for 3-6th month: payment is made only if the employee worked in the Far North. The payment of benefits for this category of employees is handled (starting from the 4th month) by the EPC.

During the reduction, they did not pay the entire salary, sick leave or vacation pay - what to do?

All payments (with the exception of benefits that are paid after the dismissal) must be made on the day the employee leaves the enterprise. Withholding payments is illegal. All payments are made in accordance with the employment contract and the legislation of the Russian Federation.

If payments have not been made (or have not been made in full), then the employee has the right to apply to the court to recover the unpaid salary (provided that it should be paid), as well as compensation for...

1. Unused vacation.
2. Unpaid sick leave.
3. Moral injury.

As well as the employee has the right to demand through the court ...

1. Reimbursement for legal fees.
2. Late payment interest.
3. Compensation for lost earnings due to a delay in the work book, due to an incorrect entry into it of the reason for dismissal, due to illegal dismissal / transfer.

You can also apply to the prosecutor's office with a statement (simultaneously with an application to the court). If the frightened employer still pays the salary (and other due compensation), then the claim can simply be abandoned. And the duty on labor disputes falls on the employer.

The limitation period for such a statement (Article 392 of the Labor Code of the Russian Federation) is 3 months from the date of dismissal.

On a note:

All payments and compensations are accrued according to the official salary. That is, it makes no sense to count on an average monthly severance pay of 30 thousand rubles if your “white” salary is 7,000 rubles, and the rest is paid “in an envelope”.

What to ask the employer for layoffs - useful tips

The procedure for issuing documents to a dismissed employee must be followed, as well as the reduction procedure - strictly and clearly, regardless of the position and reason for dismissal. The documentation procedure established by law also applies to the correct execution of the employee's personal card, as well as the maintenance of accounting journals.

What documents is the employee entitled to issue? (the list includes those documents that the employee may need in the future)?

1. Employment book (with its proper execution) - even if it is issued at the expense of the employer.
2. Employment contract (Article 67 of the Labor Code of the Russian Federation) + all copies of additional / agreements to it.
3. Student agreement (Article 200 of the Labor Code of the Russian Federation).
4. Pension Certificate.
5. Medical book.
6. Document on education (with an appropriate agreement based on this document).
7. Information about taxes paid.
8. Certificate of accrued/paid insurance premiums.
9. Information about periods of temporary disability.
10. Income certificate to be submitted to the employment service.
11. Copies of orders (Art. 62, 84.1 of the Labor Code of the Russian Federation) on hiring, dismissal from work, on transfer to another job and other orders (on additional work, work on weekends, on certification, etc.). Available at the request of the employee. A copy of the dismissal order is issued on the day of dismissal without fail (Article 84.1 of the Labor Code of the Russian Federation).
12. Information about the period of work with the employer.
13. Pay slips (Article 136 of the Labor Code of the Russian Federation).
14. A document on additional insurance contributions to the funded part of the pension + on employer contributions in favor of insured persons (if paid). Issued together with a pay slip (Art. 9 FZ-56 dated 30/04/08).
15. Help 2-NDFL (Article 230 of the Tax Code of the Russian Federation). Provided at the request of the employee.
16. Certificate of average earnings for the last 3 months (clause 2, article 3 of law No. 1032-1 of 19/04/91). You will need it at the employment office.
17. Certificate of the amount of earnings for 2 years that preceded the year of termination of work or the year of applying for this certificate (Article 4.1 and 4.3 of the Federal Law-255 of 12/29/06). It will be needed to calculate temporary disability benefits, maternity leave, child care, etc.
18. Documents of personalized accounting, individual / information, as well as information about the length of service (labor, insurance). Issued at the request of the employee to establish a pension.
19. Characteristic.