Is it possible by law to withhold overpaid vacation pay upon dismissal - withholding and return rules

By law, an employee must rest in accordance with the schedule; for each working year he has the right to receive at least 28 calendar days of rest.
By agreement with management, vacation can be granted in advance when there is not enough vacation time, but the employee really needs rest.

In this case, the manager can accommodate the employee, arrange a vacation for him and pay him vacation pay.

If the employee then does not work enough time and quits, then an overpaid amount of vacation pay arises.

Is it possible to deduct it from an employee?

Labor Code of the Russian Federation on vacation and vacation pay

The law states that employees can be given leave at any time if this does not contradict production needs (Article 122 of the Labor Code of the Russian Federation). As a general rule, the length of service required to provide full leave is six months. Having received 28 days of rest guaranteed by law, in 6 months the employee actually worked only 2 vacation weeks. The calculation is that the remaining paid vacation time will be worked out in the second half of the year. Full leave is worked for at least 11 months.

Question: How to calculate and report insurance premiums when withholding for unworked vacation days in the event of an employee’s dismissal? View answer

The law does not prohibit providing vacation before the 6 months the employee has worked, and in subsequent years of work, vacation can be scheduled even at the very beginning of the working year or at any other time.

If an employee leaves his position before he has already worked the “time off” and paid time, the employer has the right to recover funds spent on vacation pay for such an employee (Article 137 of the Labor Code of the Russian Federation).

NOTE! Withholding vacation pay is the employer’s legal right, but it is not his responsibility. The employee’s opinion is not taken into account; the employer’s decision remains within his own competence.

How is accounting reflected in the deduction of overpaid vacation pay to an employee for unworked vacation days upon dismissal?

When can vacation be replaced with cash payment?

Art. 126 of the Labor Code of the Russian Federation allows the replacement of annual paid leave with compensation if a number of conditions are met:

• compensation is requested for additional days of rest (over 28);
• the specialist is not a pregnant woman or a minor citizen;
• Additional days of rest were not provided for harmful or dangerous working conditions.

If all points are met, the employer can issue an order to pay monetary compensation. This regulation also applies to part-time workers.

The main part of annual leave (28 days) can be replaced by cash payment only upon dismissal. During the working period, vacation cannot be replaced with money - the employee must take an annual vacation according to labor law.

The basis for issuing the order is the employee’s statement -. It is from him that the initiative in receiving payment should come.

If the employee’s work involves hazardous conditions, then his request can be taken into account if the vacation days exceed 35 days (28 days + 7 for hazardous conditions cannot be replaced). Certain categories of citizens can count on additional leave: medical workers, teachers, workers with irregular work schedules.

In practice, various situations arise when it is impossible to use vacation in full:

• Illness or injury sustained while on vacation. When this is confirmed by a certificate of incapacity for work and the vacation needs to be extended or rescheduled, but enterprises do not always have the production resources to take the necessary measures, days off work accumulate. Usually, in case of sick leave, an order is issued to transfer vacation days to another date based on the employee’s application.
• Passing the session on a correspondence course during annual leave. Current legislation obliges an employee to be released to receive vocational education, but in fact he is on vacation and has the right to extend it or receive compensation. This rule also applies to the performance of government duties during rest (giving evidence).
• Other reasons provided by law.

In any case, when revising the vacation period or paying compensation to the employer and subordinate, it is necessary to come to a compromise that does not infringe on the rights of either party.

Do I need an order for compensation for unused vacation upon dismissal?

By terminating an employment contract with an employee, legal relations are terminated, but the legislation provides for a number of guarantees. One of them is financial compensation for vacation days that were not used at the date of dismissal, including periods for previous years. It is issued to all employees, regardless of the reasons for dismissal.

Article 127 (Part 2) of the Labor Code of the Russian Federation indicates the possibility of providing a former employee with all unused vacation days instead of compensation if the employee applies for vacation with subsequent dismissal, but the request may be rejected due to its inexpediency, since it is not the responsibility of the employer.

It is more profitable for management to formalize the dismissal as soon as possible and begin searching for a new specialist. The dismissed employee will no longer resume his duties, but will only be listed on the company’s staff.

In this regard, leave followed by dismissal is issued quite rarely; usually the employee simply receives a cash payment for unused days of annual leave on the day of termination of the employment contract.

A separate order for the payment of monetary compensation is not required; the basis for its accrual is an order to terminate the employment relationship.

To formalize the dismissal, the employer can use the unified order form T-8, which does not contain lines where the days of unused rest of the specialist are recorded.

How to issue an order to replace additional days with compensation?

Having received a corresponding application from an employee with a request to replace the unused part of the vacation in the form of additional days with a cash payment, the responsible employee issues an order. The document can be drawn up on company letterhead or on a standard paper sheet for office work.

The first part of the form contains information about the company: name, tax identification number, checkpoint, registration address. After indicating the order number and the date of its preparation, its name is written down. The introductory part of the decree contains the phrase: “drawn up on the basis of a statement by P.I. Torsunov.”

After the word “I order,” the boss’s orders are listed to replace additional leave with monetary compensation and make changes to personnel records. In this part, you must indicate the full name and position of the employee, the number of days being replaced, the period of work of the specialist for which he is entitled to leave, a link to Art. 126 Labor Code of the Russian Federation.

The order also identifies the persons responsible for carrying out the instructions of the manager.

The document is signed by the director, the specified employees also affix their familiarization signatures in the text of the order.

order to replace additional leave with monetary compensation - word.

When an employer does not have the right to make deductions

The law provides for special cases that prohibit an employer from withholding vacation amounts “overspent” by an employee upon dismissal. This is directly related to the reason for dismissal. The employee’s initiative, like most other grounds for dismissal, completely frees the employer’s hands with regard to retention. But there are reasons when this procedure cannot be performed. Funds paid for vacation will remain with the dismissed person if he leaves work due to:

• conscription into the Armed Forces or alternative service;
• inability to continue working due to health conditions (based on a medical report);
• reduction in numbers or staff;
• liquidation of an enterprise or termination of the activities of an individual entrepreneur-employer;
• a change in the owner of the organization if the director, his deputy or the chief accountant resigns;
• the need to give way to the main employee who previously occupied this position;
• emergencies, disasters, cataclysms and other force majeure;
• the fact that one of the parties to the contract is no longer alive.

How is personal income tax paid on deductions for unworked vacation days upon dismissal?

Order of dismissal with return of vacation pay

• Since there was a salary increase, it is necessary to calculate the average income and days before and after the increase: KDPO1 = 3 (from 06/22/17 to 06/24/17).
• KDPO2 = 4 (from 06/25/17 to 06/28/17).
• SDO1 = 967.15 rub.
• SDO2 = 967.15 * (32500 / 30000) = 1047.75 rub.

The period that the employee “rested”

In order to correctly determine the amount of deduction, you first need to calculate how many days paid by the employer the employee used as vacation and did not have time to work.

The calculation algorithm is quite simple:

1. First you need to determine your work experience with a given employer. To do this, the time interval between hiring and dismissal is taken into account in full months and additional days. Partial months are rounded in one direction or the other if the number of days worked is, respectively, more or less than 15. For example, an employee worked for 6 months and 10 days, which means that the length of service will only be counted for 6 months. And if he worked for 6 months and 16 days, he will be credited with 7 months of experience.

IMPORTANT! It is not the calendar year that is taken into account, but the working year, starting from the moment the employment contract is concluded.

2. The second stage is the calculation of vacation days that the employee managed to work before dismissal. For this, the formula is used:
   Od = 28 / 12 x Ms

   Where:

   • Od – number of vacation days worked;

   Ms is the number of months worked to achieve the vacation period.

For example, for 7 months worked by an employee, the number of days of paid vacation that does not require deductions will be 28 / 12 x 7 = 16 days.

3. Next, by simple subtraction, it becomes clear for how many days of vacation it is legal to withhold payment. The number found as a result of the formula given above is subtracted from the total number of days taken off by the employee.

For example, for a standard vacation of 28 days, provided in advance, in case of working for 7 months, the employee will need to withhold payment for 28 - 16 = 12 days.

Order of dismissal with return of vacation pay

When does the ban on withholding vacation pay apply? The employer may withhold excess paid vacation pay for vacation received in advance from the resigning employee’s salary, with the exception of a few cases. So, according to para. 4 hours 2 tbsp.

Good afternoon We are dismissing the employee at his own request on October 18, and he recently took all his vacation, until June 2, 2014, his salary (10 thousand) for the days worked is clearly not enough to pay for the vacation he took off (14 thousand), management is ready to forgive him 4 thousand .

Determining the amount of deduction

After calculating the period within which the employee must return the funds paid in advance to the employer, it is possible to determine the amount that constitutes them. To do this, you need to know the average daily earnings of the dismissed employee. It is accepted as the same as for other payments upon dismissal; it does not need to be recalculated separately for compensation for vacation pay. The calculation period is 12 months before the vacation, and if they are not worked, then the average daily earnings are calculated based on the days actually worked.

Example of calculating the amount of withholding

Let's take the data of the conditional employee that we discussed above. He worked for 7 months and took a full vacation of 28 days. We found out that he needs to withhold funds for 12 days of vacation. Let's imagine that his average daily earnings are 42,500 rubles. This means that for a full vacation he was accrued in advance 42,500 / 29.3 (average number of days in a month) x 28 = 40,614 rubles. He worked 16 days, that is, the amount is 42,500 / 29.3 x 16 = 23,208 rubles.

This means that upon dismissal, 40,614 – 23,208 = 17,406 rubles will be withheld from the employee.

Sample application for refund of vacation pay upon dismissal

We round the result in favor of the employee - 9 unworked calendar days of vacation. Let's calculate the amount of overpaid vacation pay = 9 days * 755 rubles = 6795 rubles. In this case, the head of the enterprise has the right to return the money and deduct it from the salary upon dismissal in the amount of 6,795 rubles.

How can an employer issue a refund? The deduction and return of the amount for unworked vacation is made when settling with the employee on the day of his dismissal. To determine how much a worker owes for the unworked period, it is necessary to calculate the number of months and days worked in the organization, and the number of days he did not work before the end of the working year. You can calculate the number of calendar days for which vacation pay is paid in advance in the following way:

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Holding limit

Art. 138 of the Labor Code of the Russian Federation limits the amount of deduction that an employee can make without the knowledge and consent of the employee to 20% of the payments due to him upon dismissal, and in some cases specified in federal legislation - up to half. If the resulting amount exceeds this value, the employer has several options:

• limit yourself to 20% of the salary, forgiving the employee the rest of the debt;
• invite the employee to deposit the remaining money into the cash register on a voluntary basis (coercive measures in the form of delaying the work book, etc. are prohibited);
• try to recover the missing funds from the former employee in court (Articles 382, ​​383 of the Labor Code of the Russian Federation).

FOR YOUR INFORMATION! If the employee does not want to contribute the missing amount, and the employer does not intend to return it through the court, this money will not be included in the tax base of the Unified Social Tax and the Pension Fund of the Russian Federation, for which it must be debited to account 91 “Other expenses” (clause 3 of Article 236 of the Tax Code of the Russian Federation and paragraph 2 of Article 10 of Federal Law No. 167 of December 15, 2001).

Order to return to vacation upon dismissal of an employee

As current practice shows, many employers include the payment of financial benefits in the terms of the employment contract concluded with the hired employee. The agreement specifically states the grounds under which it is possible to receive financial assistance. Let us turn to the norms of labor legislation of Russia (Labor Code of the Russian Federation). Article 129 of the Labor Code of the Russian Federation, in addition to wages, workers' compensation includes work incentive payments in the form of various additional payments, allowances, bonuses and other incentives. It turns out that if the labor agreement or other legal acts in force in the organization stipulate the payment of monetary assistance for certain periods: quarterly or at the end of the year, the practice of paying financial assistance, timed to coincide with the annual leave for the improvement of their employees, is often used in enterprises, such a payment can be considered an integral part of wages.

But in the case when a person writes a resignation letter of his own free will and receives compensation for unused vacation upon calculation, the payment of financial assistance that he would have received if he went on vacation is again at the discretion of the administration and the norms prescribed in local enterprise documents. It will be legal for a resigning employee to receive financial assistance in direct proportion to the time worked at the enterprise. So, for example, if financial assistance in the amount of 4,000 rubles is provided for 28 days of vacation, then if upon dismissal he has 14 days of allotted vacation left, financial assistance can be paid in the amount of 2,000 rubles.