Can they not pay a premium? One-time employee bonuses. Conditions of a one-time award. Rules for issuing an order

12.12.2019

please tell me if employment contract there is such a phrase: For the fulfillment of the obligations stipulated by this Agreement, the Employee is established: official salary in the amount of _____ rubles 00 kopecks;? other incentive payments in accordance with the "Regulations on Remuneration", "Regulations on Bonuses and Material Incentives for Employees". With this wording, are we always obliged to pay a bonus.

Answer

Answer to the question:

This condition of the employment contract should be considered in aggregate and by the local regulations of the organization.

From the text of the employment contract, it is impossible to draw an unambiguous conclusion about the obligation to pay bonuses. On the one hand, the wording of the contract establishes incentive payments. On the other hand, there is no mention of the obligation of such payments.

Therefore, in this situation, you should also refer to the Regulation on remuneration and the Regulation on bonuses.

In this regard, we recommend using unambiguous language, from which it follows that the organization obliged to pay an employee incentive payments or the payment of bonuses remains at the discretion of the employer " in addition, the employee may bonuses and other incentive payments are paid in accordance with the Regulations on Bonuses and Material Incentives".

The bonus, as a rule, has a fixed amount and is set for special ranks, significant work experience, and in other similar cases. When an employer establishes, for example, a bonus for having an academic degree or for professional skills, he encourages the employee to improve his knowledge and skills. And, having achieved an increase in the professional level, the employer, as if indirectly, seeks to improve the quality of the results of the employee's work as a whole. In this case, there is an element of employee incentives.

The bonus payment is of an incentive nature and implies the achievement by the employee of specific results in the performance of labor (official) duties. The employer has the right to establish different conditions (criteria) for encouraging the employee, choosing for this quantitative or qualitative indicators, for example, the absence of disciplinary sanctions on the employee. In other words, the award is encouraged for the successful solution of the set production task. Unlike the allowance, the bonus payment is characterized by a direct connection between the specific result of the worker's work and the incentive measure.

If the employer establishes an allowance or bonus without taking into account the specifics of such payments, then difficulties will arise in exercising the right to stimulate or encourage employees. So, in one case, the employer first established an employee's bonus for professional skills, and then removed it, justifying this by a decrease in production volume and the lack of a full workshop load. The court of second instance ruled in favor of the employee, pointing out that there were no grounds for such actions by the employer, because the quality of work and the qualifications of the employee, that is, the main criteria for assigning a bonus, have not changed. In addition, one employee lost the payment, and not the entire team. As a result, the court declared the order to cancel the allowance for professional skills illegal (the appeal ruling of the Chelyabinsk regional court dated July 28, 2014 in case No. 11-6993/2014).

In the situation described, the employer made one major mistake. He deprived the employee of the bonus for professional excellence, guided, in fact, by the basis that is typical for the refusal of a bonus payment (failure to achieve certain volumes). It would be possible to avoid a disputable situation or justify the legality of the decision to deprive (reduce) the payment by establishing a bonus instead of a bonus for professional excellence. In this case, the motive for assigning (non-assigning) a bonus would be the quality of work and the achievement (failure to achieve) certain production volumes.

Therefore, when establishing an incentive payment for an employee, it is recommended to choose exactly the type that, according to its specifics, is most suitable for achieving the desired effect in the labor process.

The employee can challenge the non-payment of bonuses due to dismissal

An employee will receive an annual bonus only if he worked for the reporting period

There will be no bonus if during this period an employment contract was concluded with him, but in fact he did not go to work (determination of the Moscow City Court of October 13, 2014 No. 4g / 7-10336 / 14).

When introducing a bonus system, it is necessary to clearly define the nature of payments: regular or one-time. This will make it possible to distinguish between mandatory bonuses included in the remuneration system and those left at the discretion of the employer. The amount of the bonus can be set both in absolute terms and as a percentage of salary.

One-time bonuses are issued by the director in individually and, as a rule, on especially solemn occasions or in connection with a specific event, occasion (anniversary of an employee or company, the birth of a child). Such payments are prescribed outside the wage system, as additional measures incentives left to the discretion of the employer.

Interest Ask

What will help to justify the optionality of the award?

The unambiguity of the wording, which testifies to the incentive nature of the payment and its dependence on the performance of the employee.
The employment contract clearly lists the payments included in the wages(salary and possibly personal allowance). It is not worth describing the specific procedure for calculating the bonus, but it is necessary to indicate that it is not part of the employee's salary and is not part of his salary.
It is advisable to reflect in the local act that the bonus payment is not included in the remuneration system. In addition, it specifies its type (annual, current, etc.) and the cases in which the bonus is paid (performance of a particularly urgent task, making rational proposals). The condition on the availability of free Money for staff incentives. In general, the more carefully the cases and the procedure for calculating bonus payments are prescribed, the more likely it is to justify manipulations with their sizes (appeal definitions,).

Regular bonuses are established within the framework of the wage system and paid monthly, quarterly or at other intervals. The regular nature of the payments actually makes the bonus an integral part, an element of the employee's salary (appellate ruling of the Chelyabinsk Regional Court dated March 19, 2015 in case No. 11-2995 / 2015). For example, this is typical for workers with a piece-bonus wage system, for whom the bonus is an obvious (as salary) component of wages. The formula for its calculation and labor standards are determined in the local act.

Along with monthly bonuses, employers encourage employees with the thirteenth salary based on the performance of the entire company at the end of the year. But not everyone gets it. When an employee leaves before the end of the calendar year, after the termination of the employment relationship, employers consider themselves free from obligations and leave former employees no premium payments.

Then the workers try to recover money through the court. There is an example of a decision when the court sided with the employer because of the conditions in the local act that are mandatory for the employee: six months of work experience and being on the staff of the company at the time of payment. The employer was also helped by the fact that the annual bonus was not included in the wage system and was not mandatory (determination of the Primorsky Regional Court dated January 14, 2015 in case No. 33-319). In another case, the employer lost the case, as the court literally interpreted the internal document, not finding in it restrictions on the payment of bonuses to laid-off workers (ruling of the Yaroslavl Regional Court dated June 21, 2012 No. 33-3160 / 2012).

In our opinion, the presence of restrictive conditions in local acts and non-payment of an annual bonus to a dismissed employee are illegal, because this violates Art. 132 of the Labor Code of the Russian Federation on the prohibition of discrimination in the establishment of wage conditions. In other words, the only criterion (whether the employee is fired or continues to work) for making a decision on his promotion or refusal to pay is unacceptable.

That is why the courts do not take into account employers' references to the right to dispose of bonuses at their own discretion. Thus, the Bryansk Regional Court included quarterly and annual bonuses in the wage system, considering them part of the employee's salary. The arguments of the court were as follows: bonuses are paid for work, that is, for the performance job duties, and they are related to the results of activities and the fulfillment of established indicators (appeal ruling dated 03.03.2015). Similar conclusions contain the appeal rulings of the Khabarovsk Regional Court,.

Interest Ask

Can a newly appointed director cancel bonuses? individual workers?

Yes, but only if there are good reasons. An unreasonable decision will allow the employee to recover money.
In practice, a situation is possible when a newly appointed manager reviews the lists of employees for bonuses compiled by his predecessor and issues new order without the people mentioned earlier. But such a decision requires justification, not personal discretion.
In the event of a dispute, it will be necessary to prove that new director acted within the limits of authority, had the right to decide on non-payment or reduction of the amount of the previously approved bonus, and he had grounds for this. If there was no convincing reason, then the actions of the employer are recognized as illegal. It was these consequences that awaited the company, whose new director considered the work of the employee to be insufficiently effective, and him unworthy of monetary incentives (determinations of the Supreme Court of the Republic of Bashkortostan dated 17.04.2014 No. 33-5420 / 2014, dated 05.29.2014).
This would not have happened if the new director had taken into account the rules of the local act and had not violated the procedure for calculating bonuses, and had also drawn up documents on violations committed in the performance of labor duties.

So, the provisions of the local act, excluding the dismissed employee from among those who are entitled to the annual bonus, are risky. Therefore, it is better not to use this opportunity to minimize financial costs.

complex financial position employer - a reason not to pay a bonus

Establishing a bonus for an employee does not in itself mean an unconditional obligation of the employer to pay it regularly. The employee will receive a bonus only when he fulfills all the conditions stipulated by the local act. It is developed taking into account the following principles: non-discrimination, providing employees with equal opportunities to achieve good performance and etc.

Bonuses, as a rule, presuppose the existence of two objective conditions: the grounds for calculating the bonus and the employer's financial capacity. Therefore, in a local act, it is important to establish a direct link between the implementation of the established bonus system and the financial and economic condition of the company. In case of financial difficulties, this will allow to reasonably suspend bonus payments (determination of the Moscow Regional Court dated December 25, 2012 No. 33-26159 / 2012). For example, a company's difficulties may be in the presence of debt or reaching a certain level of debt.

A situation is possible when financial difficulties are just beginning and further payment of bonuses calls into question the existence of the company. In such a situation, the refusal of a bonus or a reduction in the amount of payments must be justified and stocked up (in case of a dispute) with supporting documents. In our opinion, a professional analysis and a forecast of the expected economic situation in a company or a separate industry based on it can have a very positive value in the matter of proof. Such a document also prescribes a set of measures taken by the employer to overcome a difficult situation. It is signed by an economist, deputy director for economic issues (another specialist), and approved by the head of the organization.

Not always a difficult financial situation is spelled out in the local act as a criterion for non-payment of bonuses. Then you need to use the existing rules internal documents. So, in one case, the employer won the dispute, since the basis for paying the bonus was a certain level of workload, complexity, quantity and quality of the employee's work. But since this level decreased due to the difficult financial condition of the company (bankruptcy), the court found the employer's actions to not accrue the bonus justified. At the same time, the court did not qualify the actions of the employer as a deduction of bonuses, but recognized the absence necessary conditions for payments provided for by the local act (determination of the Voronezh Regional Court of August 28, 2014 No. 33-4148).

By the way

The bonus can not be set for all employees, but only for certain positions

In this case, evidence will be needed confirming the distinctive features of the work of employees who are assigned a bonus, with references to the specifics of the labor process and other similar criteria.
The employer is free to establish a bonus system of remuneration. He has the right to assign bonuses not to the entire staff of the company, but to limit himself to individual positions (professions) or categories of specialists.
In practice, conflicts arise with employees who, according to the local act, are not entitled to a bonus, but whose functionality, at first glance, is similar to those employees who receive a bonus. For example, a sales manager and a new customer search manager. In order to avoid accusations of discrimination, when developing the criteria for assigning payments, one must proceed from objective indicators of the complexity of work in a particular position, drawing Special attention on the scope and specifics of work duties.
In the event of a dispute, the presence (absence) of a difference between functional responsibilities those employees to whom the bonus is paid, and those who do not receive it (appellate ruling of the Lipetsk Regional Court dated March 11, 2013 in case No. 33-609 / 2013).

A violator of discipline can be deprived of a bonus if it is provided for by a local act

To deprive an unscrupulous employee of a bonus, it is not enough to document the fact of a disciplinary offense. It is necessary to include in the local act the commission of such an offense by the employee as a basis for depriving the bonus (determination of the Primorsky Regional Court of 04/15/2014). In our opinion, non-payment of the bonus or reduction of its size is lawful only when a disciplinary sanction is applied to the employee in accordance with the law. Otherwise, the deprivation of the bonus may be regarded as a measure disciplinary action, which is not allowed by law (and part 4 of article 192 of the Labor Code of the Russian Federation).

Correctly allocate the bonus fund

among employees, the criteria for determining the percentage of personal contribution (participation) will help. Then the unequal amount of the premium will be justified (appellate ruling of the St. Petersburg City Court of October 22, 2014 No. 33-17283).

Therefore, if an employee has committed a disciplinary offense (he was late for work, refused to go on a business trip or skipped work for no reason), then he must first be subject to a disciplinary sanction and, on this basis, deprive him of the bonus. In this case, non-payment of the bonus cannot be considered as a disciplinary sanction (definitions, decision of the Supreme Court of the Russian Federation dated January 23, 2015 No. AKPI14-1384). In addition, they are not rewarded for misconduct.

With respect and best wishes comfortable work, Elena Karsetskaya,

Expert Systems Personnel

The most important changes of this spring!

There have been important changes in the work of personnel officers that should be taken into account in 2019. Check in the game format whether you have taken into account all the innovations. Solve all the tasks and get a useful gift from the editors of the Kadrovoe Delo magazine.

personnel service

If you pay vacation pay a day later than the deadline, the company will be fined 50,000 rubles. Reduce the notice period for the reduction by at least a day - the court will reinstate the employee at work. We have studied court practice and prepared safe recommendations for you.

The payment of a bonus after the dismissal of an employee is an infrequent event, but quite possible. Consider what consequences it can lead to both for the employer and for the employee.

Do they pay a bonus upon dismissal of their own free will?

Operating in modern conditions wage systems very often form a salary, making it up from several parts (Article 129 of the Labor Code of the Russian Federation). One of these parts are incentive payments, which include bonuses. As a rule, the bonus included in the remuneration system is accrued for the results of work during a certain period and is a fairly regular payment.

For the bonus to be valid, all the rules for calculating it must be reflected in one of the internal regulations of the employer, agreed with representatives labor collective(trade union). Among such acts, the Labor Code of the Russian Federation includes (Article 135):

provision on bonuses (incentives);
labor agreement, if the bonus is set individually for a particular employee.

Usually, the document on bonuses also indicates those situations in which an employee is deprived of the right to receive a bonus. It is mandatory to familiarize each of the employees with the content of the regulatory act on bonuses against receipt.

As a rule, the premium is accrued after the end of the period with which it is associated. And in relation to a dismissed employee, such an accrual may occur after his dismissal. However, since the bonus is part of the remuneration system, the fact of dismissal does not deprive the dismissed person of the right to receive the bonus accrued to him after the dismissal, but for the period of his work with the employer (letter of the Ministry of Finance of the Russian Federation of October 25, 2005 No. 03-03-04 / 1/294 and Letter No. 20-12/32623 of the Federal Tax Service for Moscow dated May 5, 2005). Therefore, despite the presence in the Labor Code of the Russian Federation (Article 140) of the condition that the full payment upon dismissal is made on the day of this event, the bonus to the dismissed person, if he has the right to receive it, can be paid.

The prerequisites for the award of such an award will be:

The fact of the work of the dismissed person in the period for which the bonus was accrued.
Fulfillment by the dismissed of all the necessary indicators provided for by the normative act on bonuses, for a reasonable accrual of a bonus to him.
The absence in the normative act on bonuses of a condition on non-accrual of bonuses to those leaving during the bonus period - this condition, according to the courts, is discriminatory (appellate rulings of the Lipetsk Regional Court of December 17, 2014 No. 33-3122 / 2014, of the Moscow City Court of August 2, 2013 No. 11 -22649, Khabarovsk Regional Court dated July 9, 2014 No. 33-4342/2014, Primorsky Regional Court dated March 10, 2015 No. 33-1928, Stavropol Regional Court dated June 30, 2015 No. 33-3855/15). However, there are courts that do not see a violation in the presence in the employment contract or other local regulatory act of the condition that the bonus is accrued only to those who continue to work in the organization (appeal ruling of the Perm Regional Court of November 18, 2013 No. 33-10685 / 2013).

How to pay a bonus to a dismissed person and the consequences of payment for an employer

The bonus, reasonably accrued to a retired employee, will be included in the employer's payroll expenses in the month of accrual, taken into account when determining the profit base (letters of the Ministry of Finance of the Russian Federation dated October 25, 2005 No. 07/21/2005 No. 20-12 / 52413 and dated 05.05.2005 No. 20-12 / 32623), but in accounting it will not be reflected in correspondence with account 70, but will be attributed to account 76: Dt 20 (23, 25, 26, 44 ) Kt 76. The condition for including the bonus in the composition of expenses is the mention of it in the employment contract or other local regulatory legal acts.

Accordingly, in correspondence with account 76, it is also necessary to make a posting on the accrual of the amount of personal income tax to be withheld from the premium (subparagraph 6, paragraph 1, article 208 of the Tax Code of the Russian Federation): Dt 76 Kt 68.

The payment of money will be expressed in the posting Dt 76 Kt 50 (51).

The amount of the premium must be subject to insurance premiums in the usual manner (letters of the Ministry of Labor of the Russian Federation dated 02.09.2013 No. 17-3 / 1450, dated 04.03.2014 No. 17-4 / OOG-136, resolution of the Federal Antimonopoly Service of the Urals District dated 07.04.2014 No. F09-1159 / 14 in case No. A76-9584/2013):

in the PFR, MHIF, FSS (Article 420 of the Tax Code of the Russian Federation);
in the FSS for accident insurance (clause 1, article 20.1 of the law “On Compulsory Social Insurance against Accidents ...” dated July 24, 1998 No. 125-FZ).

The accrual of contributions will be displayed by standard postings for attribution to costs, with a breakdown of the amounts for the corresponding sub-accounts of account 69: Dt 20 (23, 25, 26, 44) Kt 69.

Read more about this.

Since the bonus is accrued to the dismissed person in a period that goes beyond the period of time that is calculated to determine the average earnings needed to calculate vacation compensation, it will affect this average earnings only in one case: if the bonus is paid for the year preceding the year of dismissal. To take into account such bonuses in the calculation of average earnings, regardless of the time of their actual payment, is required by paragraph 15 of the Regulations on the peculiarities of the procedure for calculating average wages (Decree of the Government of the Russian Federation of December 24, 2007 No. 922). Therefore, in the event of payment of an annual bonus, the dismissed person will have to recalculate compensation for unused vacation, actually paid on the day of dismissal, and not only pay the missing amount to the employee by withholding personal income tax from it, but also charge additional compensation for the vacation insurance premiums(Article 420 of the Tax Code of the Russian Federation and subparagraph 2 of paragraph 1 of Article 20.2 of Law No. 125-FZ). Reasonably additionally accrued vacation compensation can also be taken into account in labor costs.

Insurance premiums (both those accrued on the amount of the premium and those additionally accrued on the increased vacation compensation) will be included in full in expenses that reduce the profit base (provided that the amount of the premium itself is included in expenses, subparagraph 49 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation).

The personal income tax and insurance premiums accrued from the premium will be reflected in the relevant reporting to be submitted by the employer to the IFTS and extrabudgetary funds.

Read more about reporting on insurance premiums for employees.

Error in the payment of bonuses and the consequences of such payment for the employee

An error may be found in the calculation of the premium already paid, leading either to an underestimation or an overestimation of its amount. The reasons for such errors are divided into 2 types:

counting;
due to incorrect application of the established accrual rules.

If the error led to an underestimation of the premium, then regardless of the reason for which the error was made, it can be corrected by additionally accruing the necessary amount of premiums and, accordingly, personal income tax and insurance premiums from them.

And if the amount of the bonus paid is too high, then the employer, who decides to return the money paid to the employee in excess, will have to go to court with this issue. Moreover, the court’s decision will become positive only if it is possible to prove the presence of a calculation error in the calculations, since only such an error allows the employee to return the overpaid amounts (Article 137 of the Labor Code of the Russian Federation). It is no longer possible for the dismissed person to withhold these amounts from the salary, so a court decision will be required.

Read more about the deductions that an employer can make from an employee's salary, read the article. "St. 137 of the Labor Code of the Russian Federation: questions and answers " .

If, however, when calculating the bonus, any other error was made, except for the calculation, then the employee has the right not to return the amount overpaid to him (Article 1109 of the Civil Code of the Russian Federation), since there is no fault of his in the error made when calculating the bonus. In this situation, the courts will be on the side of the employee.

Litigation in terms of bonuses after dismissal

When deciding on the payment of bonuses to retired employees, the courts recognize the non-payment of the bonuses established by the remuneration system for the period worked, in the absence of good grounds for de-bonding, as a violation of the rights of employees. Such decisions are fixed, for example:

in the appeal ruling of the St. Petersburg City Court dated January 19, 2016 No. 33-1182 / 2016 in case No. 2-2358 / 2015 - the court pointed to the right of the resigned own will an employee to receive a bonus for the year he has fully worked, recognizing as discriminatory the norm of the provision on incentive payments, which establishes the possibility of non-payment of the bonus if the dismissal took place before the issuance of the bonus order;
appeal ruling of the court of Yamalo-Nenets autonomous region dated November 10, 2014 in case No. 33-2773 / 2014 - the dismissal of an employee before the issuance of a bonus order does not mean that the employer has no obligation to pay him bonuses for the period worked;
decision of the Savelovsky Court of Moscow dated April 1, 2011 in case No. 33-24582 - the establishment of bonus rules that limit the right of an employee to receive a bonus for the period worked by him in connection with dismissal violates labor rights this employee;
Appellate ruling of the Khabarovsk Regional Court dated January 16, 2015 in case No. 33-117 / 2015, which contained the following wording: “The defendant’s assertion that bonuses to employees is the exclusive right of the employer, who used it at his own discretion in relation to individual employees, is a manifestation discrimination of the right of other employees to monetary incentives with equal positive performance indicators. The appeal ruling of the Chelyabinsk Regional Court dated April 2, 2015 in case No. 11-3327/2015 made a similar conclusion - the termination of an employment contract with an employer, according to the general meaning of the law, does not deprive employees of the right to receive appropriate incentive payments.

However, there are also opposite court decisions in which the court recognizes the non-payment of a bonus to a dismissed person as fair, since the bonus regulation contains a clause that this payment is not accrued to persons dismissed at the time the decision was made to pay the bonus. An example is the decision of the Tverskoy District Court of Moscow dated September 28, 2011 in case No. 33-5385.

The courts may recognize the non-payment of a bonus to a dismissed person as justified if the provision on bonuses contains a condition for calculating the bonus:

only to persons in labor relations with the employer (appellate ruling of the Lipetsk Regional Court dated December 17, 2014 in case No. 33-3122 / 2014, decision of the Istra City Court of the Moscow Region dated September 8, 2010 in case No. 33-21939, appeal ruling of the Moscow City Court dated December 22, 2015 No. 33- 48637/2015);
at the end of the year, only those who were listed as employed by the employer on the last day of this year (decision of the Mytishchi City Court of the Moscow Region dated September 20, 2011 in case No. 33-28296).

Examples of court decisions made in favor of an employee in terms of overpaid bonuses can be:

absentee decision of the Morgaushsky District Court of the Chuvash Republic dated 06/03/2011 in case No. 2-354 / 2011 - an advance payment and a bonus were paid to an employee who stopped going to work - overpaid wages cannot be recovered from the employee, except in cases of a counting error, recognition by the authority for labor disputes, the fault of the employee in non-compliance with labor standards or in idle time, the presence of unlawful actions of the employee that led to excessive payment;
decision of the Leninsky district court of Orsk, Orenburg region dated 05.10.2010 in case No. 2-2094 / 2010 - the same bonus was paid to the dismissed employee twice - this error is not countable, since it is not related to inaccuracy in arithmetic operations, but evidence of the employee's participation in the repeated transfer of the amount to the court is not presented.

Results

The bonus established by the current system of remuneration for work, accrued to a retired employee for the period worked by him, is paid in the usual manner with personal income tax deducted from it and all insurance premiums are charged. The reason for non-payment may be the inclusion in the normative act on bonuses of the condition that the bonus is not accrued to a person who quit during the bonus period or is not an employee of the employer at the time of the bonus accrual.

What are the deadlines for paying bonuses under the new wage law in 2016? This is a question on the minds of many accountants. The fact is that from October 3, 2016, a law enters into force, which introduces a deadline for the payment of wages - no later than 15 calendar days from the end of the period for which it was accrued. (Cm. " "). After the adoption of this law, information of this kind appeared in some media: “legislators have forbidden paying bonuses to employees” or “they will be fined for paying bonuses.” But is it really so? How does the new law affect the payment of bonuses? What will change in the work of an accountant? Let's figure it out.

Introductory information

Federal Law No. 272-FZ of June 3, 2016 comes into force on October 3, 2016. From this date will be valid new edition article 136 of the Labor Code, which provides that the employer is obliged to pay wages to employees no later than the 15th day of the month following the month worked. That is, all employers will be required to pay wages for October no later than November 15, 2016. If the day of payment of the salary falls on a weekend or holiday, then the salary will need to be paid, as before, no later than the last working day before this weekend or holiday (part 8 of article 136 of the Labor Code of the Russian Federation).

The new wording of Article 136 of the Labor Code: “Wages are paid at least every half a month. The specific date for the payment of wages is established by the rules of the internal work schedule, a collective agreement or an employment contract no later than 15 calendar days from the date of the end of the period for which it was accrued.

When to pay premiums

Bonuses are incentive payments that employers can pay to employees for conscientious performance of work duties or achievement of certain labor indicators.
Bonuses may be included in wages (part 1 of article 129 of the Labor Code of the Russian Federation). To do this, bonuses must be provided for, for example, by the provision on bonuses or the employment contract. These documents prescribe, among other things, the rules for bonuses:

indicators for which the premium is calculated;
the procedure for calculating the premium;
conditions under which the premium is not assigned.

The bonus established in this way is an element of the wage system. And if so, then according to the new article 136 of the Labor Code of the Russian Federation, from October 3, bonuses must also be paid no later than 15 calendar days from the end of the period for which bonuses are accrued. And this, indeed, can lead to certain problems. Let's take everything in order.

What are the prizes

Depending on the frequency of payment, the following types of premiums are distinguished:

At the same time, depending on the grounds for paying bonuses, they can also be divided into production and non-production.

Production bonuses

Monthly, quarterly and annual bonuses can be either operational (for example, monthly bonuses that are part of the salary) or non-productive (for example, monthly bonuses for employees with children). However, more often the payment of these bonuses, nevertheless, is inextricably linked with the results of work and the achievements of employees. After all, few employers can afford to pay bonuses without taking into account performance.

Monthly bonuses

Most employers pay monthly bonuses based on the results of a month already worked. However, before issuing a bonus order, management needs some time to evaluate the performance for this month: for example, it is necessary to analyze sales reports and / or compare historical data with previous periods. And only after the analysis, make a decision about who is entitled to a monthly bonus and who is not.

It turns out that only a few January working days remain to assess the results of work for the whole year, to accrue and pay bonuses and employers. How to be in time?

Non-production bonuses

Wages are, first of all, remuneration for work (Article 129 of the Labor Code of the Russian Federation). However, non-productive bonuses (for example, monthly bonuses to employees with children) are not related to the labor success of employees. Accordingly, they are not considered an integral part of the salary. Therefore, the provisions of the new Article 136 of the Labor Code of the Russian Federation do not apply to non-production bonuses. Non-production bonuses can be paid at any time determined by a local regulation or an employment contract.

Violation of deadlines: consequences

The law, which will come into force on October 3, 2016, significantly toughens the responsibility of the employer for non-compliance with the terms of payment of wages. In particular, from October 3, 2016, the amount of monetary compensation for delayed wages will increase. From this date, the amount of interest for the delay will be determined based on 1/150 of the key rate of the Central Bank for each day of delay.
Also, from the specified date, administrative fines for late payment of earnings have also been increased. For organizations, the amount of the fine can reach: for a primary violation - 50,000 rubles, for a repeated one - 100,000 rubles.

Solution options

Official clarifications or recommendations government agencies So far, unfortunately, there is no information on how employers can act in this situation. We do not rule out that by the time the new law comes into force (by October 3) such clarifications will appear. But while they are not there, let's try to independently evaluate a few options actions of employers.

Transfer of premiums

Suppose that the employer does not have time to pay the monthly bonus for October by November 16, 2016. In this case, theoretically, the bonus for October can be issued later - in December 2016, along with the salary for November. However, in the order not to pay the bonus, it should be called the November bonus. And then everyone will be happy: the employee will receive a well-deserved bonus, and the employer, at least formally, will not violate the requirements of the new article 136 of the Labor Code of the Russian Federation in terms of meeting deadlines.

Quarterly bonuses are more difficult. You can postpone the payment of premiums for the 3rd quarter of 2016, for example, to January 2017 (when the premium will be paid for the year). Thus, the quarterly bonus for 9 months of 2016 can be "veiled" in the annual bonus. But then the employees will receive the bonus for the quarter with a significant delay. Many people may not like this. Another option is to pay the bonus for 9 months not in October, but in November (along with the salary). But then the premium will need to be carried out as a monthly premium for October.
As for the annual bonus for 2016, if you do not have time to pay it before January 15, then you can theoretically pay it along with the payment of the monthly bonus for January (that is, in February 2017).

With such transfers, premiums will constantly have to be called premiums for other periods. This, at least, is very inconvenient for accounting. Moreover, the legislation will be observed only formally. And it is possible that such an approach will be revealed during the inspection by labor inspectorates.

Material aid

The employer has the right to provide financial assistance to the employee (or a member of his family). If material assistance is due to employees in connection with some event (for example, in connection with the birth of children), then such payment is not part of the earnings, since it is not related to labor. Accordingly, financial assistance can be provided to employees without taking into account the deadlines specified in Article 136 of the Labor Code of the Russian Federation (as amended from October 3, 2016).

However, constantly paying financial assistance instead of bonuses (for example, monthly) is rather strange and, moreover, dangerous. The fact is that if you constantly provide financial assistance with a certain frequency, then the inspectors can regard such payments as part of the earnings. And, accordingly, bring the employer to the above responsibility. Moreover, financial assistance is a fixed payment. And bonuses can often be of different sizes.

In short. Then the employer must first issue an order to the enterprise on the expediency of the reduction, then accordingly inform the employees that in two months the employees will be fired. During these two months, the employee is obliged to work, but nevertheless, all benefits for workers apply to him, that is, you can go on sick leave if such a need arises and, accordingly, the sick leave will be paid. By the way, it will also be paid if you fall ill within 30 days from the date of dismissal.

you can go to annual leave, if you are supposed to be on schedule, or the employer, by agreement of the parties, will provide you with vacation outside the schedule.

You can also quit before the agreed time, but you must quit of your own free will, and in this case you are entitled to compensation in proportion to the unworked time left before the reduction. That is, you must work for two months, but found another job earlier, for example, two weeks in advance, in which case the employer is obliged to pay you severance pay for the remaining two weeks based on the average earnings for each remaining day.

Upon dismissal, you must be paid a severance pay in the amount of the average wage for 1 month, and the average wage includes all accruals received by you for the previous 12 months. This severance pay will count towards the first month.

Then, within 7 days from the date of dismissal, you must be registered with the Employment Service.

If after the second month you still cannot find a job, then the employer will be obliged to pay you another average wage, if you show him work book without a new employment record.

And already, if due to the fault of the employment service workers you cannot get a job even for the third month, then you will be entitled to another payment of the average monthly wage.

The procedure itself is this.

As for the Regulations on bonuses, I can’t read it, some signs come out, but not letters.

What does your payroll say? You pointed out that it is written: that the salary includes a bonus, therefore, if this clause is fixed, then it can no longer be violated.

I would advise in this case to be guided by article 135 of the Labor Code of the Russian Federation, which says:

Your remuneration system is enshrined in the local acts of the enterprise, the investigator cannot change it just like that.

The salary of an employee is established by an employment contract in accordance with the this employer wage systems.

And under the terms of this article, you should receive wages based on the fixed system.

That is, the premium cannot be removed just like that, it is officially reflected and fixed.

You have official proof, which, as you indicated, was received by you by mail, indicating all the conditions, that is, it is directly indicated that you are being placed in a framework that violates the law. You can also prove that the size of your wages was almost the same systematically, and suddenly ceased to be such based on the conditions given. There are after all statements of payment of wages, information sheets with a breakdown of payments.

Write a collective application to the Labor Inspectorate by attaching this file and copies of other documents and send. Such violations in relation to the team in any case will lead to a quick and massive inspection of your company's actions.

So far, this is not a court, but only the initiation of a check, which will result in an Order and penalties. Employees do not have the opportunity to check all the background of the enterprise, including the financial situation, but the Inspectorate does.

Give your employer that perspective. Mass checks and penalties, it’s cheaper for you to be reduced by law with all payments than to lose reputation and money, and also to appear on a constant note as a malicious violator by law enforcement agencies.

Is an organization obligated to pay bonuses to employees if it has previously done so on an ongoing basis? Supreme Court figured out the remuneration system in organizations where salaries are balanced at the level of the minimum wage, and the main part of the pay is precisely the bonus. The conclusions of the judges were disappointing for the workers.

What happened?

The Supreme Court of the Russian Federation considered a dispute between an employee credit institution and his employer. The employee wanted to recover from the organization a bonus in the amount of 100 thousand rubles, which the employer paid regularly along with salary and then suddenly stopped doing it. As a result, over the last two months of work, the clerk did not receive these same 100 thousand rubles. At the same time, the salary supplement was provided for by the regulation on remuneration in a fixed amount, but a multiplying coefficient was applied to it, depending on the general indicators of the bank for the month. The size of the coefficient was not limited by anything. As a result, the employer defined it as 0%, and when multiplied by zero, no bonus came out. The employee considered his rights violated and went to court. He argued that the unfortunate coefficient could not be less than 50%, and that is exactly what his regulation on wages says.

You need to pay a bonus, but for good results

The courts of two instances upheld the position of the employee and found the actions of the employer unfair. But the Supreme Court, in ruling No. 69-KG 17-22 dated November 27, 2017, indicated that in Article 191 of the Labor Code of the Russian Federation, which alone regulates the payment of bonuses, this payment is directly dependent on various circumstances that develop in the organization as a result of:

fulfillment by the employee of his duties;
economic success of the organization;
other conditions determined by the employer in local regulations.

At the same time, the judges emphasized that in the employment contract with the plaintiff, the bank did not provide for and did not guarantee him the mandatory payment of bonuses. In the regulation on remuneration, to which the plaintiff referred, it is said that the bonuses to the salary of employees directly depend on the result of the bank's work, and they are not included in the list of guaranteed payments. The judges emphasized that none of the local acts of the bank says that the monthly bonus is a mandatory part of the salary.

What should employers do?

Very often bonuses are built into the remuneration system of organizations as the main part of wages. The employee receives a small salary and a large allowance to it. If an organization is in trouble financial situation or the employer begins to treat the employee not too well, he cancels the allowance, and earnings plummet to almost the level of the minimum wage. Therefore, the employee can, as expected, go to court in order to recover the mandatory, in his opinion, bonus. How should employers act so as not to pay anything in excess of the salary in such controversial situations?

In the local regulations of the employer, it is necessary to adhere to the exact wording in terms of the conditions for paying bonuses.
Do not explicitly indicate in the employee's employment contract that the bonus is a mandatory allowance - then its payment is not guaranteed.
The salary must not be set too low. During a lawsuit, this can play into the hands of the employee. In a controversial situation, the plaintiff's salary turned out to be higher than the average for the region, so he was not awarded the award.