Financial liability of the employer and employee. Classification according to the number of perpetrators. Depriving an employee of the opportunity to work illegally

As follows from Art. 233 of the Labor Code of the Russian Federation, the employee must bear financial responsibility for any damage caused to the employer as a result of his guilty unlawful behavior. However, it should be borne in mind that in accordance with Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.

This is one of the main features of workers’ financial responsibility. Direct actual damage is understood as a real decrease (diminution) of the employer’s available property (or the property of third parties located at the employer, if the employer is responsible for the safety of this property) or deterioration of its condition, as well as the need for the employer to make costs or excessive payments for the acquisition or restoration of property. In this case, the employer’s cash property is considered only that which is on its balance sheet.

Lost income (lost profit), which, as already noted, is not subject to compensation, is the income that the employer could have received, but did not receive due to the employee’s unlawful behavior. For example, absenteeism certainly causes property damage to the employer, since he does not receive any part of the profit as a result.

But this is not direct actual damage, therefore absenteeism is the basis only for disciplinary, but not material liability. On the contrary, damage by an employee to a vehicle that he was driving in the performance of his work duties is actual (real) damage and entails financial liability. But losses consisting of the employer not receiving income from the use of this vehicle in connection with its repair are already lost profits, which are not subject to compensation.

Or another example. Due to the fault of the employee, the machine malfunctioned. The machine was under repair for three days. The cost of repairing a machine is direct actual damage subject to compensation by the guilty employee, and possible income from products not produced in three days and unsold forms lost profits (lost income), which is not subject to compensation.

The legislation provides circumstances excluding the employee’s financial liability.

The Labor Code of the Russian Federation includes:

• force majeure;
• normal business risk;
• extreme necessity or necessary defense;
• failure by the employer to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.

These circumstances are not specified in the Labor Code, but force majeure usually means extraordinary and unpreventable events under given conditions. For example, we may be talking about a natural disaster, which resulted in a shortage or damage to the employer’s property entrusted to the employee.

The risk is considered justified if:

1. the action taken is consistent with modern knowledge and experience;
2. the set goal could not be achieved by other actions;
3. the person who incurred the risk took all possible measures to prevent damage.

Extreme necessity means causing harm to eliminate a danger that directly threatens the person and rights of a given person and other persons, if this danger could not be eliminated by other means and if the harm caused is less significant than the harm prevented. For example, damage to the employer’s property while putting out a fire.

An example of the lack of proper conditions for storing property entrusted to an employee may be the storage of valuables without appropriate security or in premises unsuitable for this purpose. However, the employee must promptly notify the employer in writing of the absence of these conditions.

If at least one of the circumstances considered is present, the employee’s financial liability for damage incurred by the employer is excluded.

The legislation provides for two types of financial liability of employees: limited and full.

Limited liability is expressed in the employee’s obligation to compensate for direct actual damage, but not in excess of his average monthly earnings. For example, a cleaner of industrial premises, whose salary is 2 thousand rubles, in the process of washing window glass (and their area in industrial premises can be very large) broke one of them worth 5 thousand rubles.

If the totality of all conditions for bringing to financial liability is established, then her obligation to compensate the employer for damage will be limited to the amount of 2 thousand rubles.

Limited financial liability is the leading type of financial liability of employees and is applied in all cases, unless another type of liability is provided by law.

Full financial responsibility consists in the employee’s obligation to compensate the direct actual damage caused to the employer in full. It can BQ3J be given to employees only in cases provided for by the Labor Code of the Russian Federation or other federal laws.

Article 243 of the Labor Code of the Russian Federation provides that full financial responsibility is assigned to the employee in the following cases:

• when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is charged with financial responsibility in full for damage caused to the employer during the performance of the employee’s job duties. For example, such responsibility is assigned to cashiers in accordance with the Regulations on the procedure for conducting cash transactions for the lack of funds received by them for safekeeping and other purposes;
• shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document (for example, by power of attorney). More details about agreements on full liability will be discussed below;
• intentional causing of damage;
• causing damage while under the influence of alcohol, drugs or toxic substances;
• causing damage as a result of the employee’s criminal actions established by a court verdict;
• causing damage as a result of an administrative violation, if established by the relevant government body;
• disclosure of information constituting a secret protected by law (official, commercial or other), in cases provided for by federal laws;
• causing damage not while the employee was performing his job duties. (For example, if an employee damages a machine or other equipment while using it for personal purposes.)

In addition to the above cases, financial liability in the full amount of damage caused to the employer can be established by an employment contract concluded with the head of the organization, deputy managers, and chief accountant.

Most often, full financial responsibility takes place on the basis of written agreements on full financial responsibility. Such contracts are concluded only with adults who directly service or use monetary, commodity values ​​or other property, and only with those indicated in the special lists of work and categories of workers with whom these contracts can be concluded.

Lists of these works and categories of workers, as well as standard forms of contracts, are approved in the manner established by the Government of the Russian Federation. Agreements on full financial liability are concluded, for example, with storekeepers, forwarders, cloakroom attendants, conductors, etc.

Full financial responsibility can be not only individual, but also collective. Collective (team) financial liability is introduced when employees jointly perform certain types of work related to the storage, processing, sale (vacation), 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 conclude an agreement with him for full compensation of damages.

In this case, a written agreement on full financial responsibility is concluded between the employer and all members of the team (team). Moreover, in order to be released from financial liability, a member of the team (team) must prove the absence of his guilt.

The Labor Code defines procedure for determining the amount of damage caused and its compensation.

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 depreciation of this property.

In some cases, federal laws may establish a special procedure for determining the amount of damage to be compensated if this damage was caused 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 .

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 a check, the employer has the right to create a commission with the participation of relevant specialists.

To establish the cause of the damage, it is mandatory to request an explanation from the employee in writing.

During the inspection process, the employee and his representative have the right to get acquainted with all inspection materials and appeal them in the manner prescribed by law.

Compensation for damage can be made either voluntarily or compulsorily.

Voluntary compensation for damage Possibly in cash or in kind. In cash, the employee voluntarily compensates for damage in full or in part within the amount of the type of financial liability that may be imposed on him by law. In this case, by agreement between the employer and the employee, compensation for damage by installments is allowed.

In this case, the employee submits to the employer a written obligation to voluntarily compensate for damages, indicating specific payment terms. Compensation for damage in kind is possible with the consent of the employer by transferring to him property equivalent to the lost property, or by repairing damaged property.

If the employee refuses to voluntarily compensate for the damage caused, recovery is made in forcibly in monetary form. There are two possible methods of enforcement: judicial and extrajudicial.

The extrajudicial recovery procedure consists in the fact that the amount of damage is recovered by order of the employer by deduction from the employee’s salary. In this case, the total amount of deductions for each payment of wages cannot exceed 20%. Recovery of the amount of damage caused by order of the employer is possible only if the amount recovered does not exceed the average monthly salary. An order to recover damages can be made by the employer (as a general rule) no later than one month from the date of final determination of the amount of damage caused.

In all other cases, i.e. when the month period has expired and no order has been made, or the amount of damage to be recovered from the employee exceeds his average monthly earnings, and the employee does not agree to voluntarily compensate for the damage, recovery is carried out in court.

In turn, the employee, if the employer fails to comply with the procedure for collecting damages established by law, has the right to appeal the employer’s actions in court.

Russian legislation strictly establishes the employer’s obligation to pay wages to employees on time and in full. If an employer decides to commit violations in this area, he will face serious inspections and fines for the damage caused. The Labor Code takes a less strict approach to the financial liability of an employee to the owners and management of enterprises. However, an employee should not completely neglect the provisions of Chapter 39 of the Labor Code.

Basic regulations

Despite the fact that an employee, in fact, has more opportunities to cause harm to the employer, the code does not contain a detailed list of types of such damage. Article 238 of the Labor Code of the Russian Federation implies that the employee’s financial liability arises only for direct actual damage. This means that the employer can only demand compensation for damaged or lost material or financial assets. To ensure that management does not try to hold employees responsible for hypothetical costs, in the form of lost profits, this same article clearly prohibits demanding this from team members.

Material damage caused by the employee must be tangible and be expressed in a physical decrease in the amount of valuables or deterioration in their condition, Art. 238 Labor Code of the Russian Federation.

In recent years, management has begun to gladly use this method of moral influence on the consciousness of workers, such as the promise to bring them to financial responsibility for disclosing trade secrets. To increase the vigilance of employees and prevent the spread of internal information, the employer often classifies things that are not at all related to such information as secret. For example, the amount of salary or bonuses, the composition of the founders or registration data. You need to understand that only internal reporting data, tender proposals or proposed activities to promote products, data on technologies, models and designs, and the like are subject to non-disclosure. But, even if this information became known to the hired person, this is not a reason to try to punish him financially. A necessary condition for prosecution will be the obligation to prove several facts:

• the employee owned the information, was aware of its special status and signed a signature on its safety;
• transferred it to unauthorized persons (accidentally or intentionally);
• the data used caused real material losses to the enterprise.

But even in this case, the court will determine the degree of guilt and classify the severity of the employee’s misconduct; until its decision is made, only disciplinary liability can be applied.

If, nevertheless, the illegal use of commercial information is proven, and even with signs of personal gain, then the employee risks falling under Art. 183 of the Criminal Code of the Russian Federation, which states not only the application of impressive fines, but also real imprisonment.

Collect all or cases of full financial liability

Learned - work or compensate

Today you can often find an employer who cares about improving the qualifications of his employees. Investing in the training of specialists has become a common practice, but since modern education costs a lot of money, management also needed means of protection against the dishonesty of students. Article 249 of the Labor Code is intended to regulate this aspect of labor relations, which allows the employer, who has spent financial resources and time on personnel training, to demand their compensation in the event that the employee fails to fulfill his obligations for mandatory work.

If an employee violated the contract to obtain a specialty at the expense of the company and quit before completing his studies without good reason, then the entire amount spent during the years of study is subject to recovery. If the work period is violated, then an amount calculated in proportion to the unworked time is reimbursed.

There is damage, but there is no responsibility

But even established actual damage and its culprit do not always mean that the employee will be held financially responsible. In the event of force majeure or a risk of life for the employee himself or several, especially if the person did everything possible to preserve the property, such damage cannot be recovered, Art. 239 TK.

This same article also implies another reason for the employer to refuse attempts to obtain from the employee the value of stolen or damaged materials. If management neglects its responsibilities to ensure conditions for storing valuables, then even the specialist who signed the documents on their preservation will not be financially responsible for their loss. For example, if the employer discloses information about security methods, admits strangers to the warehouse territory, or refuses to timely repair locks and install bars, the storekeeper will be able to prove in court his innocence of the detected shortage and avoid paying their cost.

The employee is to blame, but the employer will answer

In addition to direct damage in the form of theft or breakdown of equipment, an employee can also cause harm in an indirect way: damaging property belonging to the counterparty, but transferred to his enterprise for safekeeping. In this case, the employer of the negligent specialist will have to pay the full cost of the damaged materials (Articles 402 and 1068 of the Civil Code of the Russian Federation), and then decide how to recover the costs incurred from the offender (Chapter 39 of the Labor Code). So, if the fabric was damaged in the studio or the size was wrong, the customer will rightfully demand a refund from the management of the sewing company. All attempts by the employer to remove responsibility from the organization and step aside will be illegal, since the court will consider the atelier to be the executor, and not a specific seamstress. How the relationship between management and the person hired to perform the work will develop in the future will not concern the customer.

The employer’s responsibility is to prove the amount of damage and establish the employee’s guilt

The fact of material damage can be established both situationally (application from a counterparty, emergency, report of the financially responsible person) and during planned activities (inventory). But recording this state of affairs is not enough to make financial claims against an employee. First you need to conduct an inspection and comply with the established art. 247 TC procedures:

1. Create a new or convene an existing commission at the enterprise, designed to establish the amount of damage, its causes and those responsible.
2. Determine the quantitative composition of the missing property and its value (based on accounting registers or according to current market valuation data).
3. Find out the circumstances of the damage and the circle of those involved.
4. Require written explanations from all those potentially responsible for causing harm. If employees refuse to write them, this should be recorded in a separate act.
5. Assess the degree of guilt of the employee or the participation of each member of the team, taking into account mitigating circumstances that make it possible to refuse the demand for compensation payments, Art. 240 TK. As a rule, the salaries of all those responsible are also taken into account.
6. Based on the results of the inspection, draw up an inventory sheet or a defect report.
7. Familiarize the guilty employee with the inspection materials and take into account his objections.
8. Issue an order (instruction) to hold the employee financially liable.

It should be noted that conducting an inspection is the direct responsibility of the employer. If he evades it, but does not abandon the intention to financially punish an employee for damaged property, the indiscriminately accused person can not only ignore the demands of his superiors, but also go to court to protect his interests.

In the process of checking and determining the amount of losses, the employer has the right to waive claims against the employee, or partially reduce them, based on the employee’s explanations or the specific circumstances of the incident, Art. 240 Labor Code of the Russian Federation.

Procedure for payment of material damage

If all the formalities to establish the amount of financial losses of the enterprise and the circle of persons responsible for them are observed, the moment comes when the funds must be legally withheld from the income of employees and their withdrawal must be documented.

Amount of established damage	Deadline for submitting a claim from the employer	Refund method	Documenting
Small damage, not exceeding the average salary	Within a calendar month from the date the damage was determined	From the employee’s salary, if he continues to work, from settlement and compensation payments upon dismissal	Order of the manager, after receiving a written explanation from the employee and familiarizing him with the cost calculations.
Small damage not exceeding the average salary, for which the employee refused compensation, or damage the amount of which exceeds the average salary of the guilty employee	Within a year from the date of discovery of the fact of damage or loss of property, Art. 392 Labor Code of the Russian Federation.	From the salary of a continuing employee in the amounts provided for in Art. 138 Labor Code of the Russian Federation. From other income of dismissed workers in the same amounts.	Deductions are possible only by court decision and on the basis of a writ of execution.
Damage exceeding the average salary, for the recovery of which the voluntary consent of the employee has been obtained	Within a year from the date of discovery of the fact of damage and loss of property, Art. 392 TK.	From the employee’s salary or in the form of providing an equivalent replacement for damaged property. There are also frequent cases of reaching an agreement between the parties on restoring the functionality or quality characteristics of damaged valuables, Art. 248 Labor Code of the Russian Federation.	An order from the manager and a written agreement on the method and procedure for compensation for damage. The amount or volume of damage caused, the timing of debt repayment or repair work, and the technical characteristics of the equipment provided to replace the lost equipment are also stated here.

Voluntary payment for damage caused

In rare cases, an agreement is reached between the employee and the employer on voluntary reimbursement of costs incurred by the company to restore material assets or settle relations with counterparties, it will be necessary to conclude a written agreement. The offending employee undertakes to pay the amount of damage. Moreover, the restriction established by Art. 138 TK. The agreement may imply a complete one-time deposit of money into the cash register or the current account of the enterprise, and repayment of debt in installments, and even a separately agreed amount that does not correspond to either accounting data or market information. The validity of the signed contract does not terminate with the termination of the employment relationship and will continue even after dismissal.

Unfortunately, such agreements are often not fully implemented or they are abandoned before payments have begun. In this case, the employer has only one way to bring the employee to financial responsibility - going to court for the truth.

Arbitrage practice

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

The question of what financial responsibility the employee bears to the employer is key in many cases of employment, especially for responsible positions with a high risk of the employee’s actions causing damage to the enterprise. Current legislation provides for direct consideration of these issues in the context of labor law, depending on the specific situation of causing material damage by employees.

Employee financial liability – what is it and when does it arise?

The legal regulation of the concept of material liability in the conduct of labor relations is widely disclosed by the provisions of the Labor Code of the Russian Federation. In particular, a section is fully devoted to this topic.XI Labor Code of the Russian Federation. From the point of view of the employee’s financial responsibility to the employer, the main standards for regulating this topic are outlined in Articles 238-250 of the Labor Code of the Russian Federation.

This designation, in accordance with the provisions of Article 238 of the Labor Code of the Russian Federation, means the obligation to compensate for damage to the employer’s property caused by one’s own actions or inaction. Moreover, such an obligation arises through the fault of the employee in the process of carrying out labor relations. In addition, the financial liability of employees at an enterprise may include cases of harm they cause to third parties who have any business relationship with the employer.

The application of liability provisions requires compliance with three fundamental conditions. In particular, the employer has the right to demand compensation from the employee if the following facts are combined:

• There is a cause-and-effect relationship between the employee’s actions and the harm caused. That is, the employer needs to provide evidence that it was thanks to and due to the actions or failure to commit them by any employee or group of employees that material damage was caused.
• The damage was caused by the employee’s action or inaction that was unlawful. Thus, holding workers accountable is also allowed when, by virtue of their duties, they were required to take certain actions to prevent such consequences, but did not take them.
• The presence of guilt in the damage caused. This should imply a mandatory qualification of the person’s personal attitude to the action that caused the damage. This attitude is recognized as containing guilt if it was expressed in the form of negligence or intent of the employee. That is, when the worker acted in full accordance with existing job descriptions, work responsibilities and common sense, was not aware of the consequences of his actions or inaction and did not seek to cause damage to the employer, he can be released from financial liability.

The legislation refers only to actual harm to this liability. This means that the worker is responsible only for the actual decrease in the amount of property of the employer or third parties, or its damage, damage or destruction. The benefit lost due to the employee’s actions cannot be written off and claimed by the employer from the employee.

Labor legislation implies the existence of two main types of financial liability, which applies to workers. The use of the standards of this division is extremely important for the subsequent qualification of the case. Thus, liability can be full or limited. In the first case, the worker is responsible for all and any harm caused by him, and with limited liability, it is assumed that clear legislative limits on the financial amounts that can be recovered from the employee are established.

There is also the concept of collective or brigade liability. It provides for a certain division of harm and obligations for its compensation among all employees of a separate division of the enterprise. Members of the said collective, upon voluntary admission of guilt, have the right to themselves determine the degree of responsibility of each of their members, and when resolving the issue in court, it is determined by the court.

In the event of early termination of an employment contract, if the employee’s studies at the expense of the employer were provided for by the terms of this agreement, the person leaving is obliged to reimburse him for all funds spent on his studies.

How is financial liability determined and its size?

By default, all employees bear limited financial liability. This means that the maximum amount of recovery and compensation that an employer can demand is limited to certain limits. Such limits are established by the provisions of Article 241 of the Labor Code of the Russian Federation and in most situations correspond directly to the employee’s average monthly earnings.

Determining the average monthly earnings is the responsibility of the company's accounting department. Moreover, this is calculated for the last two years of labor activity.

Full financial liability is governed by the provisions of Articles 242-244 of the Labor Code of the Russian Federation and is applied only in certain cases. These generally include the following circumstances, regardless of other factors:

• If a shortage of valuables is detected that were entrusted to the employee on the basis of a one-time document or under a written agreement.
• In case of causing harm while intoxicated.
• If the worker intends to cause harm.
• When the damage was caused in connection with the commission of criminal acts by an employee, as determined by a court decision or administrative offense.
• When causing material damage outside the time of performance of their work duties.

In addition, the legislation provides for the possibility of the employer concluding a separate agreement on the full financial responsibility of the employee. Such an agreement is concluded in writing according to the model established by law. It can only be applied to adult workers and only to persons who are included in the list of professions or positions specified in the provisions of Order No. 85 of the Ministry of Labor of the Russian Federation dated December 31, 2002.

By decision of the court or the enterprise body responsible for labor disputes, the amount of funds required from the employee may be reduced.

The procedure for collecting compensation from an employee for damage caused

To recover funds from an employee by agreement during the pre-trial resolution of the above issue, the employer can use several different tools. In particular, labor standards provide for the possibility of deducting funds from an employee’s monthly earnings, subject to certain restrictions. Thus, the amount of the penalty may be:

• Up to 70% of the monthly salary in cases where there was evidence of the employee’s criminal actions in causing it.
• Up to 20% of the monthly salary in situations where the employee caused damage through his actions unintentionally or accidentally.

Determining the amount of material damage is an extremely important component of this issue. The amount of possible compensation for harm caused by an employee is calculated from the real market value of goods and property, taking into account depreciation. Confirmation of the cost of goods can be the accounting documents of the enterprise, including those containing information about its acquisition by the enterprise.

Any situation in which material damage is recovered from an employee can be resolved in court or pre-trial. Regardless of the mechanism for resolving this issue, the employer must act in this case as follows:

In what cases is an employee not held liable?

Current legislation suggests that holding a worker liable for a material nature is not permissible in every case of damage to workers. Thus, the provisions of Art. 239 of the Labor Code of the Russian Federation directly classifies the following situations as cases that exclude this liability of employees:

• When causing harm within the limits of normal economic risk. Such a risk is established in the internal documents of the organization and job descriptions of employees, and if necessary, the final decision on this issue is made by the court based on common sense. Normal economic risks include accidental breakdowns of equipment during operation, partial damage to goods during loading or unloading operations, and other types of damage.
• If the harm was caused due to force majeure circumstances. These circumstances include natural disasters, illegal actions of third parties with which the employee was not associated and other events that he could not influence in any way.
• When harm occurred when it was absolutely necessary. Such situations may include an attack by third parties on an employee, the use of equipment and material assets of the enterprise to save the life and health of third parties or the employee himself, and other similar circumstances.
• If harm is caused through the fault of the employer, who did not bother to provide proper conditions for the storage or use of the property entrusted to the employee. These situations include, for example, the lack of proper locks or fencing at a protected facility, restrictive systems in production, or additional confirmation fields in software.

The employer has the exclusive right to relieve its employees from financial liability. That is, if they cause damage to him, he always has every right not to recover compensation from them and to waive any claims against them in connection with such damage to property.

17.04.2016

Property rights in the Russian Federation are recognized and protected by the state. Accordingly, private, state, municipal and other forms of property are equally recognized and protected. The financial liability of employees for damage caused to the employer in the performance of labor duties is one of the means of protecting the employer's property rights.

Material liability of employees according to labor law standards

Careful attitude towards the employer’s property is one of the main responsibilities of an employee under an employment contract (Article 21 of the Labor Code of the Russian Federation). In cases where he violated the requirement of the law to take care of the employer’s property, as a result of which the employer suffered property damage, the employee is obliged to compensate for this damage. In other words, employees are held liable according to the norms of labor law, which is defined as a measure of state coercion, which consists of imposing on the employee the obligation to compensate, in the manner and amount established by law, for damage caused through his fault to the organization with which he has an employment relationship.

The legal basis for the institution of material liability of employees is formed mainly by constitutional norms, for example, Art. 8 of the Constitution of the Russian Federation, which establishes forms of ownership and their inviolability, as well as the Labor Code of the Russian Federation (Chapters 37, 39).

The financial liability of employees under labor law must be distinguished from other measures of material influence, namely:

• Deprivation or reduction of the bonus amount provided for by the wage and remuneration system based on the results of the organization’s annual work (where such remuneration is provided for by local regulations containing labor law norms).
• Reducing the coefficient of labor participation in a collective form of organization and labor stimulation.
• Deductions from wages made on the basis of the law (Article 137 of the Labor Code of the Russian Federation).

Regulatory legal acts regulating compensation for material damage caused to the employer are intended to:

• Firstly, to ensure the safety of the property of the employer and employee, to prevent waste and mismanagement.
• Secondly, to help strengthen labor discipline.
• Third, ensure the protection of workers' wages from excessive and illegal deductions.

Material liability under labor law encourages workers to work in such a way that there is no damage, loss, destruction, or theft of material assets. It is called upon to play a serious role in the fight against violations of state discipline, which may include distortions of operational and accounting reporting and registration. Such phenomena not only cause significant harm to the normal activities of the organization, but also cause material damage, which, as practice shows, is expressed to a greater extent in the theft of unaccounted for or unspent material assets.

Subjects of material liability in labor law, as was said, can be both an employee and an employer (organization), regardless of the form of ownership on the basis of which this organization is created. As economic and judicial practice shows, the subject of legal relations regarding material liability in the sphere of labor is primarily the employee who has caused material (property) damage to the employer through his unlawful guilty actions (inaction).

Conditions for bringing an employee to financial liability

An analysis of the norms of the Labor Code of the Russian Federation, in particular Articles 233, 238 of the Labor Code of the Russian Federation, leads to the conclusion that the employee’s financial liability arises for damage caused to the employer only if a set of the following conditions is established:

1. The presence of direct actual damage.
2. Illegality of employee behavior.
3. Causal relationship between the employee’s unlawful behavior and the occurrence of damage.
4. The employee's fault for causing the damage.

These conditions are mandatory and in the absence of at least one of them, the employee cannot be held financially liable for labor law standards.

1. Existence of direct actual damage must be proven. Proof of the occurrence of damage is a statement by a party to the employment contract, supported by documents and other evidence, including witness testimony.

In paragraph 2 of Art. 55 of the Civil Procedure Code of the Russian Federation establishes that evidence obtained in violation of the law has no legal force and cannot be used as the basis for a court decision. Evidence is characterized by the fact that it represents factual data, i.e. information that correctly and sufficiently reflects the circumstances that are important for determining the existence of material damage caused to one or another party to the employment contract.

Unlike civil law, only actual damage (also called direct or actual) that was actually caused by the employer or employee must be proven. In civil law, in addition to real damage, lost income is also recovered, which a person (individual or legal entity) would have received under normal conditions of civil circulation if his right had not been violated (lost profits or lost income). The norms of labor legislation do not provide for the recovery of lost income (profit that the employer could have received, but did not receive as a result of unlawful actions (inaction) of his employees)

2. Illegality of employee behavior is a legally significant circumstance when bringing him to financial responsibility. Behavior (action or inaction) is considered illegal if it violates certain obligations assigned to a party to an employment contract by the relevant labor standards. The main duties of the employee are provided for in Art. 21 of the Labor Code of the Russian Federation. In addition, the employee’s responsibilities arise from the content of the employment contract, as well as internal labor regulations.

The behavior of an employee in which he does not fulfill his job duties or performs them improperly, but only those duties that are directly or indirectly related to careful treatment of material assets (the property of the employer and other employees) in accordance with Art. 21 Labor Code of the Russian Federation. These responsibilities are usually specified in special acts that determine the procedure for saving, storing and using property and other material assets. These acts, in addition to laws, decrees of the President of the Russian Federation, resolutions, orders of the Government of the Russian Federation, include internal labor regulations, job descriptions, various rules, instructions and orders of the employer.

Inaction is considered unlawful if the above acts impose on the parties to the employment contract (or one of them) the obligation to perform certain actions, which one or another party did not fulfill. If this concerns, in particular, an employee, he must be familiar with such an act.

3. Causalitybetween unlawful behavior of an employee and the presence of damage is one of the mandatory conditions for bringing him to financial responsibility. Proving this circumstance involves presenting evidence confirming the connection between the non-fulfillment or improper fulfillment of the duties assigned to the employee in compliance with the law with the occurrence of damage. Of course, there is no financial liability for accidental consequences.

4. The employee's fault for causing the damage should be taken into account when deciding whether to hold him financially liable. In labor law, guilt is understood as a person’s mental (internal) attitude towards his illegal behavior and its consequences (results).

A distinction is made between guilt in the form of intent (direct or indirect) and in the form of negligence (arrogance, negligence, imprudence). Direct intent occurs when the employee is aware of the illegal nature of his action (behavior), foresees the possibility of harmful consequences (damage) and desires their occurrence. With indirect intent, the employee, aware of the illegality of his behavior and understanding the possibility of material damage, does not want this, but allows harmful consequences to occur or is indifferent to their occurrence.

Carelessness in the form of arrogance is that the employee, aware of the illegal nature of his action (inaction) and the possibility of material damage as a result, frivolously hopes to prevent the latter.

Negligence and imprudence are evident where the employee was not aware of the illegal nature of his behavior and did not foresee the possibility of causing damage, but due to the circumstances of the case he should have and could have foreseen.

Any form of guilt can serve as a basis for bringing an employee to financial liability under labor law (naturally, in the presence of other conditions of material liability provided for by law).

When deciding whether to hold an employee financially liable, dividing intent into direct or indirect intent has no practical significance. At the same time, the difference between intent and negligence plays a certain role, since in some cases the limits of financial liability (limited or full) depend on the form of guilt. If the damage is caused by the intentional actions of the employee, including when the employee did not want, but consciously allowed the possibility of damage to occur, then financial liability arises in the full amount of the damage caused (Clause 3, Part 1, Article 243 of the Labor Code of the Russian Federation).

Circumstances excluding the employee’s financial liability

In a number of cases, the law provides for a rule according to which the employee’s financial liability to the employer is excluded. In particular, in accordance with Art. 239 of the Labor Code of the Russian Federation, such cases include: the occurrence of damage due to force majeure, normal economic risk, extreme necessity or necessary defense, or failure by the employer to fulfill obligations to ensure proper conditions for storing property entrusted to the employee.

Force majeure (force majeure) is an extraordinary and unpreventable event or circumstance under given conditions (natural disaster, for example, flood, earthquake, some social phenomena, for example, military operations, man-made accidents).

It is not allowed to hold employees financially responsible for such damage that arose as a result of normal economic risk.

The resolution of the Plenum of the Supreme Court of the Russian Federation dated November 16, 2006 No. 52 (clause 5) states that the actions of an employee that correspond to modern knowledge and experience can be classified as normal economic risk, when the goal could not be achieved otherwise, the employee properly fulfilled his official duties, showed a certain degree of care and prudence, took measures to prevent damage, and the object of risk was material assets, and not the life and health of people.

A circumstance that releases an employee from financial liability due to the absence of illegal behavior may be the fulfillment of a requirement (order, instruction) of the employer (his representative) to commit actions that led to material damage.

Article 240 of the Labor Code of the Russian Federation gives the employer the right to refuse to collect damages caused by an employee, in whole or in part. The employer can use this right taking into account the circumstances in which the damage was caused, the financial situation of the employee and other circumstances. Such a refusal is permissible regardless of whether the employee bears limited financial liability or full financial liability, and also regardless of the form of ownership of the organization.

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The employee is obliged to compensate the employer for direct actual damage caused to him. Lost income (lost profits) cannot be recovered from the employee.

Direct actual damage is understood as a real decrease in the employer’s available property or deterioration in the condition of said property (including property of third parties located at the employer, if the employer is responsible for the safety of this property), as well as 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.

Part three is no longer valid. - 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 local government bodies, and the constituent documents of the organization.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

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 employee’s full financial liability consists of his obligation to compensate the direct actual damage caused to the employer in full.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Financial 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 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.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

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;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

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;

(as amended by Federal Law No. 90-FZ of June 30, 2006)

8) damage was 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 and the chief accountant.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 244. Written agreements on the full financial responsibility of employees

Written agreements on full individual or collective (team) financial liability (clause 2 of part one of Article 243 of this Code), 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 years and directly servicing or using monetary, commodity values ​​or other property.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

Lists of works and categories of workers with whom these contracts can be concluded, as well as standard forms of these contracts, 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) liability, valuables are entrusted to a predetermined group of persons, who are assigned full financial responsibility for their shortage. 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 recovering damages in court, 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 depreciation of this property.

Federal law may establish a special procedure for determining the amount of damage subject to compensation caused to an 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 a check, the employer has the right to create a commission with the participation of relevant specialists.

Requiring a written explanation from the employee to establish the cause of the damage is mandatory. In case of refusal or evasion of the employee from providing the specified explanation, a corresponding act is drawn up.

(Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

The employee and (or) his representative have the right to familiarize himself with all inspection materials and appeal them in the manner 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.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

If the employer fails to comply with the established procedure for collecting 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 for it in whole 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 gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.

With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.

Compensation for damages is made regardless of whether the employee is brought 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

(as amended by Federal Law No. 90-FZ of June 30, 2006)

In the event of dismissal without good reason before the expiration of the period stipulated by the employment contract or agreement on training 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.