Overpaid. What amounts overpaid to an employee can be withheld from his salary?

Is the employee obliged to return the overpayment?

All situations where money overpaid to an employee can easily be withheld from the salary at the initiative of the company are listed in Article 137 of the Labor Code of the Russian Federation. I will name the most common ones.

First of all, you have the right to withhold from the employee the money previously given to him, which he did not return or did not work out. For example, he did not report on the money received for household needs or did not submit an advance report after returning from a business trip. In addition, if an employee resigns, the unearned salary advance, as well as excess vacation pay, can be withheld from him. However, in some cases, unearned vacation pay cannot be withheld. Let's say in case of reduction.

Another situation is that an employee was overpaid due to his illegal actions, which was confirmed by a court decision. For example, when applying for a job, he presented you with a fake higher education diploma.

And finally, the most common situation, which we will consider in detail, is that an employee was paid more money due to an accountant’s error or a glitch in a computer program. Here I will immediately make a reservation: the company has the right to withhold an overpayment only if there is a counting error. The same procedure applies to vacation pay.

CALCULATE SALARY

However, not a single regulatory document says what a counting error is. In practice, this is considered to be any inaccuracy made in arithmetic calculations. For example, an accountant added or multiplied numbers incorrectly. And if you used the wrong algorithm for calculating vacation pay or, say, took into account extra payments, such an error is no longer countable. Now let’s imagine this situation: an employee’s salary was transferred twice during the same period. So, such an error does not apply to accounting, since the salary was calculated correctly (ruling of the Supreme Court of the Russian Federation of January 20, 2012 No. 59-B11-17). Likewise, if the order specifies one employee, and the payment is accrued, for example, to his namesake, the company will not be able to claim the funds received.

Of course, the employee can reimburse any overpayment at his own request. Employees usually do this to avoid conflict with their employer. If the employee has already spent the money, you can agree with him that the company will gradually withhold the overpayment from him.

At the same time, do not forget that the total amount of all deductions for each payment of wages cannot exceed 20 percent, and only in exceptional cases - 50 percent (Article 138 of the Labor Code of the Russian Federation).

At the same time, the employee himself can dispose of his salary as he wants. To do this, just write an application to the company’s accounting department. The provisions of Article 138 of the Labor Code of the Russian Federation do not apply here. That is, in this case you can hold on to anything and for as long as you want. Representatives of Rostrud emphasized this in a letter dated September 16, 2012 No. PR/7156-6-1.

PARTICIPANT QUESTION

– Instead of sick leave, the employee was given a salary. How to fix this error?
– First of all, recalculate. Namely, instead of salary, calculate benefits for those days when the employee was sick.
If it suddenly turns out that the amount of sick leave is more than the salary for these days, simply pay the employee the difference. But the opposite situation is much more likely. That is, you gave the employee more than he was supposed to. In this case, offset the excess amount against future accruals. But only with the written consent of the employee himself.

The situation is more complicated if the employee has already left the company. After all, the employer has the right to withhold funds only from employee salaries. Here it turns out that there is nothing left to hold on to. The employee quit, which means he will no longer receive a salary from the organization.

In this case, the employer has only one way to recover the extra money - going to court. Of course, if the employee does not agree to return the overpayment voluntarily, and the organization has the right, according to labor legislation, to demand a refund.

For example, if we are talking about overpaid vacation pay, the debt will have to be forgiven. The fact is that the court will be on the side of the employees. And it doesn’t matter that today the legislative norm that previously prohibited employers from collecting unearned vacation pay in court has lost force (paragraph 3, paragraph 2 of the Rules approved by the People’s Commissar of the USSR on April 30, 1930, No. 169).

In any case, the resulting holiday pay debt cannot be considered unjust enrichment. After all, this can only be discussed in case of dishonesty on the part of the employee or a counting error (clause 3 of Article 1109 of the Civil Code of the Russian Federation). Here are examples of cases decided in favor of workers - rulings of the Moscow Regional Court dated December 15, 2011 in case No. 33-25971 and the Moscow City Court dated August 8, 2011 in case No. 33-23166.

How to reflect an overpayment in accounting

All accounting corrections must be made in the period in which the error was identified. To do this, simply reverse the overcharged amount. Also reverse the personal income tax amount. After all, the employee must return to you only the amount that you transferred to him. The postings will be like this:

DEBIT 20 (23, 25, 26, 29, 44 ...) CREDIT 70
– the excessively accrued amount of wages is reversed;

DEBIT 70 CREDIT 68 subaccount “Settlements with the budget for personal income tax”
– the amount of excessively withheld personal income tax was reversed;

DEBIT 50 CREDIT 70
– the overpayment is returned to the cash desk (if the employee has chosen this method of repaying the debt).

And if an employee asks to withhold extra money from his salary, the first two entries are sufficient. In this case, it is not necessary to reverse the contribution entries. Just when you calculate them at the end of the month, do not forget to subtract the amount of overpayment from the base.

What documents need to be completed

The basis for correcting documents and recalculating will be an internal memorandum (see sample below. – Editor’s note). Describe in it what mistake was made and what needs to be done to correct it.

Next, inform the employee himself about the overpayment (see sample notification below. – Editor’s note). In this letter, indicate the amount you are asking to be returned, and also state the reason why the employee received the extra money. Please familiarize the employee with the letter and sign it.

ABOUT THE LECTURER

If the employee does not agree to pay cash, but does not object to the overpayment being deducted from the salary, the manager issues an order to withhold (see sample below. - Ed. note). The employee must sign the order, indicating that he does not object to the basis and amount of deductions (letter of Rostrud dated August 9, 2007 No. 3044-6-0).

Moreover, written confirmation is necessary even if the company has the legal right to withhold overpayment from the employee.

At the same time, you have the right to withhold money, including from the advance payment of wages for the first half of the month. And it’s better to do just that. The fact is that when calculating deductions only once at the end of the month, you may be faced with the fact that the employee’s salary minus personal income tax and the advance payment already paid may not be enough to recover the entire amount. Or the second part of the payment will be significantly less than the first. After all, there is no need to withhold personal income tax from the salary advance.

PARTICIPANT QUESTION

– Will I have to recalculate taxes and contributions?
– In our case, we are talking about overpayment to an employee who continues to work in your company. This means that you just need to reduce the current accruals in favor of this employee by its amount. This rule applies to income tax, contributions to funds, and personal income tax. The fact is that there is no error in the calculation of the base. This means that there is no need to clarify reports for previous periods.

Abstract prepared by Sergey Shilkin

Star
for the correct answer

Wrong

Right!

The company paid the employee more vacation pay than he was entitled to. The error is not an accounting error, but the employee agrees to have the excess withheld from his salary. Is it necessary to apply the 20 percent limit in this case:

The employee has the right to dispose of his salary at his own discretion. If he writes a statement to the company’s accounting department, more than 20 percent can be withheld from him. will bring a duplicate of the sick leave certificate with the correct information.

The employee must confirm his consent to withholding the overpayment in writing.

If the employee does not promptly return the balance of unused funds to the cashier, Art. 137 of the Labor Code, which provides for cases of deduction from an employee’s salary to repay his debt to the employer.

The employer makes and formalizes decisions, as a rule, in the form of an order or instruction, although a unified form of such an order is not established by regulatory legal acts.

With regard to the employee’s consent to withhold amounts from wages, his written consent should be obtained.

14.12.2018

Sometimes when paying for labor, an accountant may make a mistake and underpay or overpay the salary.

In the first case, you can always make an additional payment.

But the overpaid amount can only be recovered in a limited amount.

The law also introduces restrictions on the possibility of deduction depending on the reason for which the overpayment was made.

What to do if an employee is overpaid?

In practice, overpayment of wages can be made for a number of reasons.

If the accountant allowed it, there are three options for getting out of the situation:

1. Talk to the employee and ask voluntarily contribute excess amount paid to the company's cash desk. This method is especially rational when the payment has just been made and the money has not yet been spent.
2. Commit retention overpaid amount in writing. You can set certain amounts of deductions for a specified period, but not more than 20% of the monthly salary.
3. Submit a claim to the court for the purpose of forced recovery of the excessively overpaid amount. This option is used if the employee does not want to return the excess amounts and has not written consent to the deduction.

A copy of the document is sent to the employee for review. After that an employee deposits an excess amount into the company's cash register, agrees to the withholding, or the employer files a lawsuit.

Read also:

Is it possible to deduct the amount of overpayment from the employee’s salary?

The legislator is quite strict regarding the issue of collecting amounts overpaid to the employee.

Art. 137 of the Labor Code of the Russian Federation contains a list of cases of overpayment when it is allowed withholding overpaid money:

• when reimbursing an unpaid advance;
• return of unspent travel allowances;
• when making calculation errors;
• in case of overpaid vacation pay (except for the cases of clauses 1 and 2 of Article 77 and clauses 1, 2, 5, 6,7 of Article 83 of the Labor Code of the Russian Federation);
• the overpayment was made due to unlawful actions of the employee recognized by the court;
• if the labor authority has proven a violation of the norms.

Under other circumstances, the employer will not be able to recover the excessively overpaid amount from the employee’s salary.

In the Labor Code of the Russian Federation it is impossible to find a specific concept of a counting error. But, according to letter No. 1286-6-1 dated October 1, 2012, an error made as a result of arithmetic calculations is recognized as a counting error.

Let's give specific examples in table form:

In practice, most situations are resolved peacefully. An employee who has received an undue amount independently deposits the overpaid money into the company's cash desk or agrees to have it deducted from wages.

How much can a penalty be collected?

Art. 138 of the Labor Code of the Russian Federation establishes a limit on the amount of deductions from wages in the amount of 20%. Therefore, the period of debt collection may drag on for several months, depending on the amount of debt.

Example:

Suppose an employee was overpaid by 10 thousand rubles.

His monthly income is 20 thousand rubles.

20% of 20 thousand is 4 thousand.

According to the law, it is impossible to recover more than this amount from an employee even with his consent.

Therefore, with such a salary, the entire debt will be collected with deductions for 3 months (4000 + 4000 + 2000).

By agreement of the parties It is also possible to set a smaller deduction amount from wages.

For example, an employee and an employer came to an agreement on monthly deductions from salary in the amount of 10% to repay the debt that arose due to overpayment as a result of an accounting error by an accountant.

If an employee wants to repay the debt in large payments, he can simply receive a salary and then pay the debt yourself in an amount exceeding the statutory 20%.

How to apply correctly?

To legally record a billing error and overpayment, it is recommended draw up a special act. It is compiled in 2 copies.

The document is signed by each member of the commission; its composition can include: an accountant, chief accountant and other persons of the enterprise.

One copy of the document remains in the organization, the second, along with the notice, must be given to the employee against signature.

The notice specifies the amount of overpayment, the need to repay it and the deadline.

If an employee refuses to pay a debt or remains silent in response to a notice, collect the debt from wages the employer has the right only through a judicial authority.

Letter No. 3044-6-0 of Rostrud dated 08/09/2007 states that the employee’s consent to withhold excessively overpaid amounts from wages must be drawn up in writing.

Within a month the employer issues debts from wages.

It contains information:

• setting the task for the accountant to withhold the amount of debt from the employee’s salary;
• employee personal data;
• amount of deductions;
• from what month the funds will be withheld;
• grounds;
• manager's signature;
• date of.

The employee must be familiarized with the order and signed.

Only after such manipulations have been completed the employer has the right to withhold excess amounts.

If necessary, resign between the employee and the employer an agreement is concluded on the timing and amount of debt repayment on a voluntary basis.

If the debtor does not make the required payments, the employer will use this document has the right to go to court with permission to collect through bailiffs.

If an employee quits, and after that the employer discovers that he has overpaid the amount to the employee, then the organization writes notice demanding payment of debt, otherwise an appeal to the court will follow.

When going to court a statement of claim is drawn up and a package of documents is attached to it:

1. employment contract with the employee;
2. documents on calculation and payment of wages;
3. report on the identified error;
4. notification, with confirmation of delivery to the dismissed employee.

If part of the debt has already been paid, additional attach a certificate with the balance of the debt at the time of going to court.

At the end of the trial, the court issues an order to collect the debt or refuse to satisfy the claim.

If the decision is positive, then the resolution is sent to the bailiffs to open enforcement proceedings and collection of the amount owed.

conclusions

On the topic of recovering overpaid amounts from wages, several main conclusions can be drawn:

• Withholding can be made in an amount of no more than 20% per month from wages.
• The employer must obtain the employee’s consent and issue an appropriate order to the enterprise.
• If the employer refuses to pay the debt, the employer has the right to go to court to resolve the issue.
• Art. 137 of the Labor Code of the Russian Federation establishes certain situations regarding overpayments in which deductions from wages and collection of the amount of debt through the court are allowed.

The review of the judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2013 (approved by the Presidium of the Supreme Court of the Russian Federation on 02/05/2014) considered, among other things, issues related to the collection of debt for unworked vacation days, untimely provision of sick leave, as well as the calculation of the regional coefficient and bonuses for work experience in KS districts and equivalent areas.

In the review of judicial practice of the RF Armed Forces for the third quarter of 2013 (approved. Presidium of the Supreme Court of the Russian Federation 02/05/2014 ) considered, among other things, issues related to the collection of debt for unworked vacation days, untimely provision of sick leave, as well as the calculation of the regional coefficient and bonuses for work experience in the districts of the KS and equivalent areas.

The Supreme Court of the Russian Federation, in its review for the 3rd quarter of 2013, indicated that if an employee is dismissed before the end of the working year, for which he has already received annual paid leave, the debt for unworked vacation days cannot be recovered in court. Including if, during the calculation, the employer was unable to deduct this amount from the wages due for payment due to its insufficiency. (Definition No. 69-КГ13-6 RF Armed Forces)

According to Part 4 of Art. 137 of the Labor Code of the Russian Federation, wages overpaid to an employee (including in the event of incorrect application of labor legislation or other regulatory legal acts containing labor law norms) cannot be recovered from him, except in cases of: counting error; if the body for consideration of individual labor disputes recognizes the employee’s guilt in failure to comply with labor standards (Part 3 of Article 155 of the Labor Code of the Russian Federation) or downtime (Part 3 of Article 157 of the Labor Code of the Russian Federation); if the wages were overpaid to the employee in connection with his unlawful actions established by the court. Similar provisions are provided for in Part 3 of Art. 1109 of the Civil Code of the Russian Federation, which limits the grounds for collecting wages provided to a citizen as a means of subsistence, as unjust enrichment in the absence of his dishonesty and accounting error.

Provided by Art. 137 Labor Code of the Russian Federation, Art. 1109 of the Civil Code of the Russian Federation contain an exhaustive list of cases when it is permissible to recover overpaid wages from an employee. Thus, the current legislation does not contain grounds for collecting the amount of debt in court from an employee who used vacation in advance, if the employer, in fact, during the calculation, was unable to make a deduction for unworked vacation days due to the insufficiency of the amounts due during the calculation. .

In addition to the issue of recovery of overpaid wages, the Armed Forces of the Russian Federation draws attention to the fact that the untimely submission by an employee to the employer of documents confirming the fact of temporary disability cannot serve as a basis for recognizing the reasons for his absence from work and dismissal for absenteeism as unjustified. (Definition No. 69-KG13-4 of the RF Armed Forces).

While on vacation in another region, S. fell ill and went to a medical facility at her location. Doctors diagnosed the disease and prescribed treatment. The plaintiff reported to work that she was sick by phone on August 15, 2012, and asked to extend her vacation by 10 days. From August 14 to August 23, 2012, S. was under treatment. After completing the treatment, I went to my place of work. On August 29, 2012, she went to work, but was announced to be fired under clause. "a"p. 6 hours 1 tbsp. 81 of the Labor Code of the Russian Federation for absenteeism - absence from work in the period from August 24 to August 29, 2012 and was issued a work book.

In accordance with Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or transferred to another period determined by the employer taking into account the wishes of the employee, in the event of temporary disability of the employee. Refusing to satisfy the claims, the court of first instance proceeded from the fact that S. did not warn the employer about illness during the vacation period, and therefore committed a violation of labor discipline, since, as follows from the internal labor regulations of the organization, the main responsibilities of the employee included including timely communication to management about the reasons for absenteeism. The court found that, by failing to provide the employer with a certificate of incapacity for work, the plaintiff abused her right to extend leave, therefore her dismissal for absenteeism without good reason is legal.

The panel of judges found this conclusion of the court to be erroneous, since the lack of information about the employer’s notification on August 24, 2012 about the plaintiff’s certificate of incapacity for work cannot serve as a basis for recognizing the reasons for S.’s absence from work from August 24 to August 29, 2012 as unjustified. The employer’s responsibility extending leave in the event of temporary disability of an employee is enshrined in Art. 124 of the Labor Code of the Russian Federation, within the meaning of which the employee must confirm the fact of temporary incapacity for work with the appropriate document (certificate of temporary incapacity for work), which gives the right to extend leave.

When considering the case, the court reliably established that S. did not hide from the employer the fact that she had a certificate of incapacity for work and did not mislead the employer on this issue. The employer issued an order to dismiss the plaintiff for absenteeism after S. returned to work on August 29, 2012 and after she presented documents indicating temporary disability during her vacation. The untimely submission by the employee to the employer of documents confirming the fact of being in a state of temporary disability, in this case, occurred due to S.’s stay during the specified period of time on vacation in another region, far from the place of work and residence, and therefore cannot be considered a guilty violation by the employee of labor standards legislation.

In addition to the above issues, the Supreme Court of the Russian Federation indicated that the regional coefficient and bonus for work experience in the districts of the KS and equivalent areas are subject to accrual on the employee’s salary, established in an amount not lower than the minimum wage provided by law . ( Determination No. 93-KGPR13-2 of the Armed Forces of the Russian Federation).

When considering the case, the court of first instance came to the conclusion that wages were accrued to the plaintiff in an amount that did not comply with the norms of labor legislation. At the same time, the court pointed out that the amount of accrued wages of an employee who has fully worked the standard working hours during this period and fulfilled labor standards in normal working conditions should not be lower than the minimum wage established by federal law in the Russian Federation, and for this amount a regional coefficient and a bonus for length of service in a given region or locality must be calculated.

In overturning the decision of the court of first instance, the higher court proceeded from the fact that the total amount of the plaintiff’s monthly salary, taking into account incentive payments including the regional coefficient and the northern bonus, exceeds the minimum wage established by federal law, therefore, violations of the plaintiff’s labor rights when paying wages for the disputed period was not allowed by the defendant.

The Supreme Court of the Russian Federation confirmed that labor legislation allows the establishment of salaries (tariff rates) as components of workers' wages in an amount less than the minimum wage, provided that their wages without including the regional coefficient and percentage bonus for continuous work experience will be no less than the established one federal minimum wage law. Under such circumstances, the conclusion of the appellate court that the employee’s salary, taking into account the northern bonus and the regional coefficient, must not be lower than the minimum wage, contradicts the norms of the current labor legislation.

On this topic, also read the answer to the question “How are settlements made with an employee upon dismissal if he has already received vacation pay, but has not yet worked his vacation?” V

If an arithmetic error was made when calculating wages, as a result of which the employee received a larger amount, he must return the difference. The employee can return the money himself or write a statement requesting that the employer himself withhold the amount from the next salary.

The employee returns the money himself

An employee can deposit money at the organization's cash desk (Debit 50 Credit) or transfer it to a current account (Debit Credit).

If an employee was credited with one amount and paid a larger amount, then everything will fall into place in terms of turnover when the employee makes up for this difference.

In the case where the error was precisely in the arithmetic calculation of wages in accrual, the following entries need to be made:

• Debit 20 ( , …) Credit – reverse excess payroll
• Debit 73 Credit - write off the excess amount for other settlements with employees

After the amounts for wages have been corrected, do not forget to eliminate the erroneous amounts for both personal income tax (reversing the tax accrual for debit and credit 68 personal income tax), and for insurance premiums (reversing entry for account 20 (, 25...) and credit 69 accounts)

The organization erroneously calculated and paid (minus income tax) a salary of 30,000 rubles to an employee. for May, instead of 000 rubles. The employee returned the money to the cashier.

Postings:

Employer withholds money

Upon application to the employee, the employer may withhold the overpaid salary himself. To do this, make notes:

• Debit Credit 73 – overpaid amount is withheld from salary

In the month of erroneous accrual, reversing entries are made for the calculation of salaries, taxes and contributions.

The employee wrote an application to deduct from his salary for June (accrued 24,780 rubles) the overpaid amount of 3,500 rubles. for May.

Postings:

Refund of overpaid wages is possible in strictly specified cases by law. We will tell you about such situations and the procedure in which a company can recover damages from an employee or an accountant responsible for overpayment.

When can overpaid and overpaid wages be returned?

In Part 4 of Art. 137 of the Labor Code of the Russian Federation contains an exhaustive list of situations when overpaid wages to an employee can be recovered. This:

• counting error;
• the employee’s fault for failure to comply with labor standards or idle time;
• unlawful actions of an employee.

The definition of the concept of “calculation error” is not contained in the current legislation, but you can rely on the explanation given by Rostrud in letter dated October 1, 2012 No. 1286-6-1: this is an arithmetic error, that is, made during arithmetic calculations.

A technical glitch in a payroll program may or may not be considered a counting error. The judicial position on this issue is contradictory:

1. According to the appeal ruling of the Sverdlovsk Regional Court dated April 21, 2016 in case No. 33-7642/2016, technical errors are not countable.
2. The ruling of the Samara Regional Court dated January 18, 2012 No. 33-302/2012 states that an arithmetic error occurs during manual counting, and a technical error (software failure) occurs during automated counting. In both cases this is a counting error.

If we are talking about the guilty actions of an employee, it is necessary to draw up documents confirming this fact: record it in a simple act, report to the police about the fact of theft of funds by an accountant who accrued an extra salary to himself.

How to get back an incorrectly paid salary

The employer has 3 options for returning excess accrued and paid wages:

1. Agree with the employee about the latter’s voluntary contribution of extra money to the company’s cash desk.
2. With the consent of the employee, make deductions from his salary.
3. Go to court to forcefully collect the debt from the employee.

In any case, if an overpayment is detected, a report is drawn up, which records the fact of the error and the amount of the overpaid salary.

IMPORTANT! From the provisions of Art. 137 of the Labor Code of the Russian Federation and analysis of judicial practice, it is possible to determine situations in which a counting error does not occur. This is payment for a vacation of a longer duration, payment of a larger bonus, receiving a double salary (determination of the RF Armed Forces dated January 20, 2012 No. 59-B11-17, etc.).

A copy of the act and a notice of the need to return the overpaid salary are sent to the employee.

The employee either deposits funds into the cash register using a cash receipt order or agrees to deductions from wages.

NOTE! The list of grounds for making deductions from wages is closed; counting errors and downtime or failure by the employee to comply with labor standards stipulated by the contract are included in this list (paragraph 3, part 2, article 137 of the Labor Code of the Russian Federation).

According to the letter of Rostrud dated 08/09/2007 No. 3044-6-0, written consent must be obtained from the employee regarding transfers from his salary in favor of the organization on the basis that he received more than he should have as a result of a counting error. Then the employer will have the right to issue an order on deductions from wages (Part 3 of Article 137 of the Labor Code of the Russian Federation).

How to reflect salary refunds in accounting

In accounting, the situation when an employee’s salary was overcharged and transferred, and then he returned the excess back to the enterprise, looks like this.

If the employee has agreed to deduction from salary, such deduction is carried out as follows: Dt 70 Kt 73. A sub-account is opened in account 73 for the corresponding situation.

An accountant who is deducting a debt to the organization from the employee’s accrued salary should remember the provisions of Part 1 of Art. 138 of the Labor Code of the Russian Federation, according to which no more than 20% of the payment amount can be withheld from one salary.

Report on detection of a counting error, notification to the employee, order to deduct from wages

To record the legal fact of a counting error, a commission act is drawn up. The commission can include a chief accountant, a payroll accountant, etc.

The act indicates where, when and by whom the error was discovered, the reason for its commission, and the amount of overpaid wages. The act is drawn up in 2 copies, it is signed by all members of the commission.

One copy of the act is given/sent to the employee along with a notification of the need to return the excess salary received. The notice specifies the amount and date by which the debt must be repaid.

In response to the notification received, the employee deposits money into the organization’s account or gives his consent to deduction from salary to repay the debt.

Within a month after the expiration of the period given for the voluntary deposit of funds into the cash register / into the company’s current account, the employer issues an order to deduct from wages (Part 2 of Article 137 of the Labor Code of the Russian Federation).

The order contains:

• instructions to the accountant to make deductions;
• Full name and position of the debtor employee;
• amounts of deductions;
• the basis for performing these transactions.

An employee’s refusal or silence in response to a notice does not give the right to deduct overpaid wages from him. In this case, the employer has only a judicial procedure for collecting the overpayment.

Is overpaid wages to a dismissed employee subject to recovery?

Wages overpaid to a dismissed employee are collected in the same manner as from an employee: a report is drawn up on the discovery of an accounting error and a notification is sent about the need to repay the debt. But instead of deduction from wages, a warning is written about going to court in case of refusal to return the money voluntarily.

Most often, a dismissed employee refuses to return the extra money, and the employer has to go to court.

Part 3 art. 392 of the Labor Code of the Russian Federation does not apply in such a dispute, since the employee did not commit unlawful actions, as a result of which the employer suffered damage.

In this case, the trial will take place on the basis of civil law, namely Art. 1102, paragraph 3 of Art. 1109 of the Civil Code of the Russian Federation (collection of unjust enrichment due to a calculation error).

The general limitation period is 3 years from the date by which the former employee had to return the money.

Is it possible to recover an overpayment from the guilty accountant?

The employer has the opportunity to hold the accountant financially liable, since as a result of his incorrect actions and the impossibility of collecting excessively transferred funds from the employee, the organization suffered damage.

There are 2 options here:

1. If an agreement on full financial liability is signed with an accountant in accordance with Art. 244 of the Labor Code of the Russian Federation, the entire amount of the overpayment is recovered from him.
2. If an agreement on financial liability is not concluded with the accountant, then damages are recovered from him in accordance with Art. 238 of the Labor Code of the Russian Federation within one average monthly salary.

As indicated in the letter of Rostrud dated October 19, 2006 No. 1746-6-1, financial liability is possible only if the following conditions coincide:

• unlawful act;
• causal connection between the unlawful act and material damage;
• guilty attitude towards the crime.

In any case, an act must be drawn up indicating the amount of damage and the reason for its occurrence (Article 247 of the Labor Code of the Russian Federation).

An order to deduct from an accountant's salary to compensate for damages is issued by the employer within a month from the date of drawing up the act.

If a month has passed or the accountant does not agree to repay the debt in excess of the average monthly salary, collection occurs in court (Part 2 of Article 248 of the Labor Code of the Russian Federation).

So, the return of wages overpaid to a working or already dismissed employee is possible in cases expressly specified in the law. These include a counting error, an employee’s failure to comply with labor standards, or the employee committing illegal actions that led to an unreasonable increase in wages.

The employer can demand the return of money both voluntarily and in court. If it is not possible to return the funds, the damage caused to the organization is covered by the accountant who made the mistake.