Ensuring that the employee receives wages in the event of termination of the employer’s activities and insolvency. Dismissal during liquidation of the Payment organization in case of termination of activities

New edition of Art. 130 Labor Code of the Russian Federation

The system of basic state guarantees for remuneration of workers includes:

the minimum wage in the Russian Federation;

measures to ensure an increase in the level of real wages;

limiting the list of grounds and amounts of deductions from wages by order of the employer, as well as the amount of taxation of income from wages;

limitation of remuneration in kind;

ensuring that the employee receives wages in the event of termination of the employer’s activities and its insolvency in accordance with federal laws;

federal state supervision over compliance with labor legislation and other regulatory legal acts containing labor law norms, including inspections of the completeness and timeliness of payment of wages and the implementation of state guarantees for wages;

liability of employers for violation of the requirements established by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, and agreements;

terms and order of payment of wages.

Commentary on Article 130 of the Labor Code of the Russian Federation

The system of basic state guarantees of wages includes, in particular:

1) prohibition of discrimination when establishing and changing wages and other conditions of remuneration (part 3 of article 37 of the Constitution of the Russian Federation, part 2 of article 132 of the Labor Code of the Russian Federation);

2) establishing the minimum wage, as well as the minimum tariff rate for public sector employees;

3) measures to ensure an increase in the level of real wages;

4) limiting the list of grounds and amounts of deductions from wages by order of the employer;

5) limitation of remuneration in kind;

6) ensuring that the employee receives wages in the event of termination of the employer’s activities and his insolvency;

7) establishing the terms and procedure for payment of wages;

8) special measures to protect wages in the event of the employer’s insolvency and termination of its activities;

9) state supervision and control over the full and timely payment of wages and the implementation of state guarantees for wages;

10) establishment of measures of employer liability for violation of the rights of employees in the field of remuneration.

Let's consider the implementation of the most important guarantees in the field of remuneration.

Prohibition of discrimination in employment

This prohibition is so important for any state that it is enshrined in the Universal Declaration of Human Rights, approved and proclaimed by the UN General Assembly on December 10, 1948, Article 23 of which states: everyone, without any discrimination, has the right to equal pay for equal work (point 2). The International Covenant on Economic, Social and Cultural Rights, adopted by the UN General Assembly in 1966, enshrined the right of everyone to remuneration that ensures, as a minimum, all workers “fair wages and equal remuneration for work of equal value, without distinction of any kind, and “In particular, women must be guaranteed working conditions no worse than those enjoyed by men, with equal pay for equal work” (Article 7(a)).

In Russian legislation, the prohibition of discrimination in the field of wages is set out in Articles 3 and 132 of the Labor Code of the Russian Federation.

Minimum wage

First of all, according to Article 37 of the Constitution of the Russian Federation, everyone is guaranteed the right to remuneration for work without any discrimination and not lower than the minimum wage established by federal law. Thus, the minimum wage in the Russian Federation represents the lowest limit of remuneration for workers and is established by federal law. The minimum wage is the lowest limit of remuneration for workers, which does not include additional payments and allowances, as well as bonuses and other incentive payments.

The minimum wage established by federal law is ensured by:

Organizations financed from the federal budget - at the expense of the federal budget;

Organizations financed from the budgets of the constituent entities of the Russian Federation - at the expense of the budgets of the constituent entities of the Russian Federation;

Organizations financed from local budgets - at the expense of local budgets;

other employers - at their own expense.

The monthly salary of an employee who has worked standard working hours and fulfilled labor standards (job duties) during this period cannot be lower than the minimum wage.

The sizes of tariff rates, salaries (official salaries), as well as basic salaries (basic official salaries), basic wage rates for professional qualification groups of employees cannot be lower than the minimum wage.

The determination of minimum wages by the state or participants in social partnership procedures pursues several socio-economic goals. Firstly, it guarantees the minimum necessary conditions for the reproduction of the labor force, the social development of the personality of workers and members of their families. Secondly, it promotes the principle of social justice, and therefore social stability in society. Thirdly, it provides, although indirect, very effective regulation of the level of employment (in particular, excessively low wage rates reduce the supply of labor, and excessively high ones reduce the demand for it). Fourthly, it improves the functioning of primary (commodity) markets and increases the efficiency of social production.

In the sense of the Basic Law of the Russian Federation, the minimum wage is a social guarantee in the field of remuneration. At the same time, this original constitutional meaning of the normative fixation of the minimum wage has been largely deformed by current legislation. In almost all branches of law, the minimum wage began to perform completely unusual functions as a means of measurement, a calculated standard for the most diverse values: scholarships, pensions, benefits and other social payments, fines, etc. According to some estimates, the minimum wage served as a calculated indicator in more than 150 regulatory documents at the level of federal legislation alone. The reasons that prompted the legislator to adopt the minimum wage as a calculation standard are quite clear: establishing certain values in a specific monetary amount was impractical due to high inflation rates. However, the minimum wage itself in this capacity turned out to be susceptible to inflation to a no lesser extent. An increase in the minimum wage automatically led to a proportional increase in all values “tied” to it (primarily various types of social payments). This, in turn, led to the fact that the minimum wage did not change for about three years (from 1997 to 2000). Such a devaluation of the minimum wage is fraught with the possibility of a serious crisis in the entire wage system and, above all, in the public sector, where the size of tariff rates directly depends on the normatively established minimum wage.

A way out of this crisis situation could only be found by eliminating the calculation function of the minimum wage, which was undertaken in 2000. In accordance with Article 1 of the Federal Law of June 19, 2000 N 82-FZ “On the Minimum Wage” from July 1, 2000, the minimum wage applies only in the following cases:

To regulate wages;

To determine the amount of benefits for temporary disability;

For payments in compensation for harm caused by injury, occupational disease or other damage to health associated with the performance of work duties.

In other cases, instead of the minimum wage, a new calculation indicator was introduced - the “base amount”, which was set at 100 rubles. Federal Law No. 122-FZ of August 7, 2000 “On the procedure for establishing the amounts of scholarships and social payments in the Russian Federation” introduced corresponding changes to the legislation regarding the calculation of the amounts of scholarships and social payments. At the same time, it was immediately possible to achieve an increase in the state-guaranteed minimum wage. Of course, this approach of the legislator could not but cause a significant reduction in the amount of scholarships and social benefits, as well as their future “lag” from the minimum wage. However, we would like to note that the problem of increasing the amount of scholarships and benefits will not be resolved by itself if we return to the practice of calculating them based on the minimum wage.

Currently, Article 133 of the Labor Code of the Russian Federation establishes that the minimum wage cannot be lower than the subsistence level of the working population.

Today, the cost of living is significantly higher than the minimum wage. At the same time, it is planned to gradually increase the minimum wage (minimum wage) and gradually bring it closer to the subsistence level. Thus, according to the Federal Law “On the Minimum Wage” dated June 19, 2000 N 82-FZ, the minimum wage is set at 1,100 rubles. per month.

Wage indexation

Measures that ensure an increase in the level of real wages should first of all include wage indexation, i.e. compensation in order to ensure cash income (including wages), as well as savings of citizens, in connection with rising prices.

Indexation of wages (and other incomes) is carried out when the consumer price index exceeds the so-called consumer price indexation threshold.

Organizations financed from the relevant budgets carry out wage indexation in the manner established by labor legislation and other regulatory legal acts containing labor law standards; other employers - in the manner established by the collective agreement, agreements, and local regulations.

For persons living in regions and localities where regional coefficients for wages are applied in accordance with the established procedure, the amount of the minimum wage subject to indexation is determined taking into account these coefficients. Currently, wage indexation in the public sector is carried out by revising the level of the minimum wage and correspondingly increasing the tariff rate of the 1st category ETC.

"Legal" procedure for paying wages

Salaries must be paid at least every half month. For certain categories of employees, legislation may establish other payment terms. It must be said that wages can be paid in the form of an advance and actual wages. However, in this case, the amount of such an advance cannot be lower than the salary for the time actually worked.

If the payment day coincides with a weekend or non-working holiday, wages are paid on the eve of this day. Payment for vacation is made no later than three days before it starts.

Article 236 of the Labor Code of the Russian Federation establishes the employer's liability for delays in payment of wages (material liability). In particular, if the employer violates the established deadline for payment of wages, vacation pay, dismissal payments and other payments due to the employee, the employer is obliged to pay them with interest (monetary compensation) in the amount of not less than one three hundredth of the refinancing rate of the Central Bank of the Russian Federation for each day delays. The Plenum of the Supreme Court of the Russian Federation explained that if a collective agreement or an employment contract determines a different amount of interest to be paid by the employer in connection with the delay in payment of wages, the court calculates the amount of monetary compensation taking into account this amount, provided that it is not lower than that established by Article 236 of the Labor Code RF. At the same time, the accrual of interest in connection with late payment of wages does not exclude the employee’s right to index the amounts of delayed wages due to inflation (Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2 ).

In addition, the Labor Code of the Russian Federation provides that an employee has the right to stop working (by notifying the employer) if the delay in payment is more than 15 days (the employee’s self-defense of his labor rights). It must be taken into account that suspension of work is allowed not only in cases where a delay in payment of wages for a period of more than 15 days was due to the fault of the employer, but also in the absence of such.

Suspension of work is not allowed:

during periods of martial law, a state of emergency or special measures in accordance with the legislation on a state of emergency;

in the bodies and organizations of the Armed Forces of the Russian Federation, other military, paramilitary and other formations and organizations in charge of ensuring the country's defense and state security, emergency rescue, search and rescue, fire-fighting work, work to prevent or eliminate natural disasters and emergency situations, in law enforcement agencies;

civil servants;

in organizations directly servicing particularly hazardous types of production and equipment;

employees whose job responsibilities include performing work directly related to ensuring the life of the population (energy supply, heating and heat supply, water supply, gas supply, communications, ambulance and emergency medical care stations).

In accordance with Article 142 of the Labor Code of the Russian Federation, during the period of suspension of work, an employee has the right to be absent from the workplace during his working hours. In addition, according to the direct instructions of Article 4 of the Labor Code of the Russian Federation, the requirement to perform work when wages are not paid refers to forced labor, therefore the employee has the right not to go to work until the delayed amount is paid to him. An employee who was absent from the workplace during his working hours during the period of suspension of work is obliged to return to work no later than the next working day after receiving written notification from the employer of his readiness to pay the delayed wages on the day the employee returns to work.

In any case, the employee is obliged to bring to the attention of the employer or his representative his intention to use self-defense in writing, otherwise his actions may be regarded as a violation of labor discipline.

The Labor Code of the Russian Federation contains a prohibition for the employer and his representatives to interfere with the self-defense of the employee.

During the period of refusal to work, the employee retains all rights provided for by the Labor Code of the Russian Federation, other laws and other regulatory legal acts. This means, in particular, that the employer is obliged to pay the employee for the time of his forced downtime.

It is important to note that the use of self-defense measures by employees in the event of non-payment of wages does not constitute a strike and can also be used by those categories of workers whose right to strike is limited by law.

The current legislation regulates the procedure for paying wages. Thus, when paying wages, the employer is obliged to issue the employee a payslip, which must indicate the components of the wage, the amount and grounds for deductions made from wages, as well as the total amount of money to be paid. The form of the pay slip is approved by the employer, taking into account the opinion of the representative body of employees, in the manner established by Article 372 of the Labor Code of the Russian Federation for the adoption of local regulations.

Wages are paid directly to the employee, except in cases where another method of payment is provided for by federal law or an employment contract.

Wages are paid to the employee, as a rule, at the place where he performs the work or is transferred to the bank account specified by the employee. The place and timing of payment of wages in non-monetary form are determined by a collective agreement or employment contract.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment.

In the event of a dispute about the amount of amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified above.

Wages not received by the day of the employee’s death are issued to members of his family or to a person who was dependent on the deceased on the day of his death. Payment of wages is made no later than a week from the date of submission of the relevant documents to the employer.

Limitation of deductions from wages

Deductions from wages are made:

1) by force of law - income tax and insurance contributions to the Pension Fund;

2) according to court decisions - fines imposed administratively, when serving correctional labor for committing a crime, when compensating for damage caused by the parties to the labor relationship;

3) by order of the employer.

The law establishes that deductions from wages at the initiative of the employer can be made only in expressly provided cases:

1) to reimburse an unpaid advance issued to an employee on account of wages;

2) to repay an unspent advance issued in connection with a business trip or transfer to another job in another locality, as well as in other cases;

3) to return amounts overpaid to the employee due to accounting errors, as well as amounts overpaid to the employee in case of failure to comply with labor standards (Part 3 of Article 155 of the Labor Code of the Russian Federation) or downtime due to the fault of the employee (Part 3 of Article 157 of the Labor Code Code of the Russian Federation);

4) upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of Part 1 of Art. 77 or clauses 1, 2 or 4, part 1, art. 81, paragraphs 1, 2, 5, 6 and 7 art. 83 of the Labor Code of the Russian Federation.

In all other cases, deductions are made by the employer filing a claim in court. In the cases listed above (except for the collection of an unpaid advance), the employer may issue a corresponding order no later than one month.

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 the following cases:

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 simple work (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.

In the cases listed above, the legislation establishes maximum amounts of deductions from wages. Thus, for each payment of wages, the amount of all deductions cannot exceed 20 percent, and in cases provided for by law - 50 percent. When deducting from wages under several executive documents, the employee must in any case retain 50 percent of his earnings. These restrictions do not apply to deductions from wages when serving correctional labor and when collecting alimony for minor children (up to 70 percent). Deductions from severance pay, compensation and other payments, which, according to the law, are not subject to recovery, are not allowed.

Guarantees and compensation to employees by employers

Labor legislation uses similar but not equivalent concepts: guarantee payments, guarantee additional payments and compensation payments. Guarantee payments are payments provided by law for periods when the employee, for good reason, did not actually perform his job duties. Guarantee surcharges should be distinguished from guarantee payments. The difference is that if payments are provided for the time of release from work for good reasons, then additional payments are established in order to prevent an unjustified decrease in earnings when the employee performed his labor functions.

Compensation payments are payments that are intended to reimburse (compensate) the employee for expenses associated either with the performance of his work duties, or with moving to another area, etc. These payments are also made when traveling on business, or when the employee uses his or her tools, vehicles and other property in the performance of work duties.

1. Guarantee payments

Guarantee payments can be made to employees in cases of release from work:

In connection with the performance of state or public duties (Article 170 of the Labor Code of the Russian Federation);

In connection with a mandatory medical (examination) examination (Article 185 of the Labor Code of the Russian Federation);

In cases of blood donation by donors (Article 186 of the Labor Code of the Russian Federation);

And in some other cases.

2. Guarantee surcharges

In addition to guarantee payments, the legislation also provides for guarantee additional payments. Such additional payments include, in particular, additional payments for downtime, additional payments when transferring to a lower-paid job, and some others.

3. Compensation payments

Compensation payments are made to reimburse the employee for expenses incurred in connection with the performance of his work duties. This may occur when traveling on business, when an employee uses his or her tools, vehicles and other property when performing work duties, etc.

Another comment on Art. 130 Labor Code of the Russian Federation

1. Article 130 establishes a system of state guarantees for remuneration of workers. This article contains only a list of these guarantees; they are disclosed in other articles of the Labor Code or in other regulatory legal acts.

2. For the minimum wage, see Art. Art. 133, 133.1, 421 of the Labor Code of the Russian Federation and commentary to them, as well as Federal Law of June 19, 2000 N 82-FZ (as amended on April 20, 2007) “On the minimum wage.”

3. On the basic salary (basic official salary), the basic wage rate for employees of state and municipal institutions, see Art. 144 of the Labor Code of the Russian Federation and commentary to it.

4. For measures to ensure an increase in the level of real wages, see Art. 134 of the Labor Code of the Russian Federation and commentary to it.

5. On limiting the list of grounds and amounts of deductions from wages by order of the employer, as well as the amount of taxation of income from wages, see Art. Art. 137, 138 of the Labor Code of the Russian Federation and commentary to them, as well as Chapter 23 of the Tax Code of the Russian Federation.

6. On the limitation of remuneration in kind, see Art. 131 of the Labor Code of the Russian Federation and commentary to it.

7. Termination of the activities of an employer - a legal entity may be associated with its liquidation, including as a result of recognition of its insolvency (bankruptcy). In accordance with Art. 61 of the Civil Code of the Russian Federation, a legal entity may be liquidated:

By decision of its founders (participants) or a body of a legal entity authorized by the constituent documents, including in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created, or with the court invalidating the registration of a legal entity in connection with violations of the law or other legal acts committed during its creation, if these violations are of an irreparable nature;

By a court decision, in the case of carrying out activities without proper permission (license) or activities prohibited by law, or with other repeated or gross violations of the law or other legal acts, or in the systematic implementation of activities by a public or religious organization (association), charitable or other foundation, contradicting its statutory goals, as well as in the event of recognition of its insolvency (bankruptcy).

Limitation of the list of grounds and amounts of deductions from wages by order of the employer

In accordance with Article 137 of the Labor Code of the Russian Federation, deductions from employees’ wages can be made only in cases directly provided for by the Labor Code of the Russian Federation or other federal laws. In a number of cases, the consent of the employee is required to make deductions.

In addition to this, labor legislation determines the maximum amount of deductions from the wages of employees. In particular, deductions at the initiative of the employer cannot exceed 20% of wages, and deductions based on executive documents - 50% of wages due to the employee.

When serving correctional labor, collecting alimony for minor children, compensation for harm caused to the health of another person, compensation for harm to persons who suffered damage in connection with the death of the breadwinner and compensation for damage caused by a crime, the maximum amount of deductions cannot exceed 70% of the employee’s salary.

Limitation of remuneration in kind

In accordance with Article 131 of the Labor Code of the Russian Federation, wages must be paid in cash in the currency of the Russian Federation, namely in rubles.

Non-monetary forms of remuneration can only be provided for by a collective or labor agreement. However, this is not enough to use in-kind payment. In any case, the employee’s written consent to receive products (goods, work, services) as wages is also required.

It should be taken into account that Article 131 of the Labor Code of the Russian Federation provides for restrictions on the use of non-monetary forms of remuneration. First of all, the share of wages paid in non-cash form cannot exceed 20% of the total wages. In addition, it is not allowed to pay wages in bonds, coupons, in the form of promissory notes, receipts, as well as in the form of alcoholic beverages, narcotic, poisonous, harmful and other toxic substances, weapons, ammunition and other items in respect of which prohibitions have been established or restrictions on their free circulation.

If individual employees refuse to receive one or another type of product (work, service) on account of accrued wages, this cannot be considered a violation of the agreement reached (even if the established warning periods are observed). The agreement of the parties in any case is not binding. In such cases, the employer is obliged to take other measures to pay off wage arrears (change the assortment, etc.)

Ensuring that the employee receives wages in the event of termination of the employer’s activities and insolvency in accordance with federal laws

When a legal entity is liquidated, the claims of creditors are satisfied in the order provided for in Art. 64 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation). Calculations for the payment of severance pay and wages of persons working or who worked under an employment contract are made secondarily after the full satisfaction of the claims of citizens to whom the liquidated legal entity is liable for causing harm to life or health, by capitalizing the corresponding time payments, as well as claims for compensation for moral damage.

If the property of a liquidated legal entity is insufficient, it is distributed among the creditors of the corresponding priority in proportion to the amounts of claims to be satisfied.

If an employee applies for payment of arrears of wages after the expiration of the period established by the liquidation commission for filing claims, wages are paid from the funds remaining after satisfying the claims of creditors submitted on time.

The claims of employees that are not satisfied due to the insufficiency of the property of the liquidated legal entity are considered extinguished.

The procedure for an employee to receive earnings in the event of the employer’s insolvency is regulated by Art. 134 of the Federal Law of October 26, 2002 N 127-FZ “On Insolvency (Bankruptcy)”. Employees are second priority creditors. Arrears of wages are repaid after the claims of citizens to whom the employer is liable for causing harm to life or health, and compensation for moral damage, have been settled.

Out of turn, as part of current payments, claims for wages that arose after the court accepted the application to declare the debtor bankrupt are satisfied.

Although current payments are satisfied out of turn, they themselves are also ranked. Requirements for wages are satisfied immediately after payments related to legal costs in the bankruptcy case, payment of remuneration to the arbitration manager, claims for current payments related to payment for the activities of persons whose involvement is provided for by law and is carried out by the arbitration manager to ensure the fulfillment of the duties assigned to him in bankruptcy case.

Current payments of one queue are satisfied on a calendar basis.

According to the legislation of the Russian Federation, suspension of the activities of an LLC without liquidation is impossible by decision of the director or founder, since an operating enterprise must pay taxes, contributions and wages to the persons who work for it.
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Termination of the activities of an LLC without liquidation is possible only by a court decision.

Concept

Suspension of the activities of an LLC without liquidation is a temporary cessation of its work, which does not provide for the complete liquidation of a business entity.

But in practice, a temporary cessation of the enterprise’s work is carried out at the initiative of management. And this is well demonstrated by the fact that cases of liquidation of LLCs with a zero balance have now become more frequent.

The elimination of an enterprise with zero expenses and income is a consequence of the fact that its management was unable to cope with financial difficulties during the suspension of operations.

Legislation

Temporary suspension of the activities of an LLC without liquidation of a legal entity is regulated by the following regulations:

Tax Code of the Russian Federation;
Labor Code of the Russian Federation;
Code of Administrative Offences.

The Tax Code of the Russian Federation regulates the filing of reports and payment of taxes by an enterprise with a zero balance.
The Labor Code of the Russian Federation regulates the payment of wages and vacation pay to all employees of an organization whose activities have been frozen.
The Code of Administrative Offenses regulates issues of forced suspension of LLC activities by court decision.
It is carried out on the initiative of regulatory authorities, therefore, the regulations governing suspension issues include all those that regulate the work of the labor, fire and tax inspectorates, as well as the Pension Fund of the Russian Federation and the Social Insurance Fund.

In what case does it happen?

Temporary termination of the activities of an LLC is carried out in the case when the organization does not actually work, but its entry in the state register of legal entities is preserved.

From a legal point of view, only suspension of activities by a court decision is possible, but in practice today this can also be done by managers and founders.

Based on this, two types of temporary termination of LLC activities should be considered:

forced;
voluntary.

It consists of a short-term suspension of activities (in Russia):

branches;
representative offices;
structural divisions of a legal entity;
production sites;
and the operation of facilities, offices and jobs that were previously used to manufacture products or provide services.

A temporary ban is a sanction for committing an administrative offense and is used if it is provided for in a separate article of the Code of Administrative Offences. It is used quite rarely.

Initially, the authorized person draws up a protocol on an administrative offense, after which he sends it to the court or another body responsible for considering cases of administrative offenses. Based on the results of consideration of the administrative document, a resolution is issued to suspend the activities of the LLC ().

For example, The labor inspectorate conducted inspections at the enterprise regarding non-payment of temporary disability benefits to workers.

Its employees identified signs of an administrative offense in the actions of management. They can draw up an appropriate protocol and, while investigating the circumstances of non-payment of the amount of benefits, suspend the activities of the LLC.

A completely different situation may arise if fire safety rules are violated. The fire inspector must draw up a protocol on the administrative offense ().

This document states:

initials and signature of the official who compiled the protocol;
information about the person against whom a case of administrative offense has been initiated;
an activity subject to a temporary ban;
time of actual termination of activity;
explanations of the offender.

In addition to the fire inspector, the document is signed by the head of the LLC. Based on this document, the authorized bodies issue a resolution to suspend the activities of the enterprise. Temporary termination of the activities of an LLC at the initiative of management or one of the founders is not regulated by Russian legislation. Therefore, from a legal point of view, it can be considered an unrealizable matter.

If the management of the LLC freezes the accounts and submits reports to the tax office, as well as to extra-budgetary funds, then a suspension is actually possible.

In addition, there are no sanctions for such termination of activities.

Video: practice

Personnel

The main issue that needs to be resolved when voluntarily suspending the operation of an LLC is the issue of wages.

After all, if at least one employee is officially registered, be it a director or an accountant, you will have to:

calculate wages;
as well as pay taxes and contributions to extra-budgetary funds.

Firstly, you should not persuade workers to leave of their own free will, as this is fraught with problems with the labor inspectorate.

The management of the enterprise is obliged to issue an order to suspend the activities of the enterprise ().

You can indicate financial difficulties as the reason and familiarize all workers with the text of the order. The very fact that they will have to be on the payroll for a long time, but not receive wages, will force many workers to write a statement of their own free will. After all, most of all any worker is interested in remuneration for his work. This will be the main motivation for leaving of your own free will.

Those employees who remain can be sent on indefinite unpaid leave.

Most of them will still come to the conclusion that it is worth writing a letter of resignation of their own free will, and there is a high probability that only the director of the enterprise will be on indefinite leave.

1. But this fact will in no way relieve him of the obligation to submit reports to tax authorities and extra-budgetary funds.

2. Just like the fact that everyone who wants to will have to pay in full:

salary amounts;
benefits;
and compensation for unused vacations.

This is very important, otherwise, instead of going on indefinite leave, the head of the LLC will attend court hearings initiated by dissatisfied employees or the labor inspectorate.

Part-time

If the financial situation of the enterprise is not catastrophic, you can offer employees to work part-time.

Considering that the rent of buildings and an office located at the legal address will have to be paid without options, this is a good solution to the personnel issue.

But in this case, most of the profit will go not only to pay rent, but also to pay:

Salary and workers compensation;
as well as taxes and mandatory contributions.

Administrative leave

The optimal solution for any partial suspension of the enterprise’s activities is administrative leave for all employees.

But they will not be able to count on receiving:

vacation pay;
as well as all compensation and subsidies required by law.

A vacation of this kind will be indefinite, so few people, except management, will agree to go on it.

As an option to part with employees, you can also use staff reduction, but for an LLC with a large number of employees this is an expensive pleasure.

You will have to pay impressive amounts of compensation provided for this method of terminating an employment contract. This is not surprising, because when the number of employees is reduced, the employment relationship is terminated at the initiative of the employer.

That is why administrative leave is the optimal solution to a personnel issue.

It is not risky and not expensive, unlike:

maintaining part-time work for employees;
or staff reductions.

Conservation of fixed assets

When a business is temporarily suspended, it is very important to freeze the main current account. If this is not done, the suspension of the LLC’s activities may be regarded as fictitious bankruptcy (,).

Controlling authorities must see that there are no receipts from the company’s current accounts.

To freeze the OS and other accounts of the enterprise, you must contact the bank with a corresponding application and an order to suspend the activities of the LLC.
After this, it is advisable to notify the tax office that the flow of funds has been stopped and the organization’s work has been suspended ().

If you don’t do this yourself, the tax authorities will in any case demand an answer and an explanation of the situation.

Reporting

Reporting for an LLC that has suspended its operations must be filed regularly. Otherwise, temporary cessation of activity will be regarded as imaginary bankruptcy.

Since the company’s balance sheet will be zero, there should be no problems with the preparation of financial statements.

Before serving first report after the suspension of the organization’s activities, it is necessary to make sure that a full settlement has been made with all resigned employees.

It is also important to close all debts to the tax office and extra-budgetary funds. If this is not done, tax authorities will charge new amounts of fines and penalties, which you will still have to pay in the end.

Reports must be submitted on time. If management is unable to submit reports on time, they must find an authorized person to handle these matters in their place.

Failure to submit or untimely submission of financial statements is fraught with fines and forced liquidation of the LLC (,).

For how long is it possible?

The forced suspension of LLC activities lasts:

until the end of the investigation into the case;
or until the termination of circumstances that, by law, prevent the full operation of the enterprise.

As for the voluntary suspension of LLC activities, this procedure is not regulated by Russian legislation, so its duration can be anything from a couple of months to a couple of years.

Consequences

Properly carried out suspension of LLC activities makes it possible to:

remove the unbearable financial burden from the enterprise;
and avoid bankruptcy.

Vladimir Alistarkhov, legal expert

Does an employee have to go to work if the employer fails to pay wages? If there is a possibility of absenteeism, what procedures must be followed to avoid negative consequences for the employee? Will the court collect wages from the employer for the period when the employee was absent from work?

Despite all the obviousness of the issues relating to an employee’s absence from work in the event of non-payment of wages, in practice everything does not look so clear.

To answer the above questions you need to do the following:

Analyze the current Russian legislation in the field of labor relations regarding the possibility of an employee suspending work due to delayed wages.
Determine the employer’s possible response steps to protect its interests in the event of an employee’s absence from work and the possible consequences for the employee.
Study the judicial practice on disputes between an employer and an employee as a result of the employee’s suspension of his work.
Determine the list and sequence of actions of the employee in connection with the delay of wages, which must be carried out to eliminate negative consequences for the employee.

The employee’s right to suspend his work as provided for by law.

According to the current Labor Code of the Russian Federation, the state guarantees the employee compliance with his labor rights and freedoms, certain working conditions, and protection in case of violation of the employee’s rights by the employer.

In particular, the rights of an employee include the right to receive wages for their work in full in the manner and within the period stipulated by the employment contract.

In accordance with Art. 352 of the Labor Code of the Russian Federation, in case of violation of labor rights, the employee can exercise self-defense, or can apply for protection of his rights to the labor inspectorate, prosecutor's office or court.

Based on Art. 142 of the Labor Code of the Russian Federation, the employer is responsible for violating the rights and freedoms of the employee, and in the event of a delay in wages for more than 15 days, the employee has the right to notify the employer in writing of the suspension of his work until payment of the delayed amount of money.

By notifying the employer of the suspension of work, the employee thus exercised his right to self-defense.
It is necessary to take into account that Art. 142 of the Labor Code of the Russian Federation provides for exceptions when an employee cannot suspend work due to non-payment of wages.

Possible response measures by the employer to the employee’s application for suspension of work.

Any employer, when an employee submits an application for suspension of work, first of all thinks about its own interests and how to punish the employee, whose actions can serve as an example for other employees of the company.

In order to punish an employee, the employer uses clauses. a) clause 6 of Art. 81 of the Labor Code of the Russian Federation, according to which an employer dismisses an employee for the latter’s absence from the workplace, that is, for absenteeism.

An employer with qualified lawyers on staff will fire an employee for absenteeism only after sending the absent employee a notice of payment of delayed wages on the day the employee returns to work.

If an employee does not go to work, then dismissing him under the article after notification of payment of delayed wages seems completely legal.

In addition to dismissal for absenteeism due to the employee’s absence from work, the employer may intend to create appropriate conditions and dismiss the employee on other grounds provided for in Art. 81 of the Labor Code of the Russian Federation, including for an employee appearing at work while intoxicated or for other reasons.

If an employee has filed an application to suspend his work due to delayed wages, he should be prepared for various provocative actions on the part of the employer, and also be ready to protect his interests by all possible legal means.

Judicial practice in disputes regarding suspension of work for delayed wages and dismissal for absenteeism.

Judicial practice on disputes between employers and employees regarding the suspension of work by an employee due to a delay in payment of wages, as well as the dismissal of an employee due to termination of work, is ambiguous.

But there is contradictory judicial practice when considering relevant civil cases in the courts of first instance, in which different decisions are made on the same issues in different regions of Russia.

At the same time, higher courts, including when considering issues related to the suspension of work of employees due to delayed wages and their subsequent dismissal, adhere to the following position.

The right to self-defense by submitting an application to suspend work by an employee is provided for by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

In addition, the Constitutional Court of the Russian Federation, in essence, agrees with this legal position of the Supreme Court of the Russian Federation, which, in its ruling dated October 19, 2010 N 1304-О-О, indicated that the employee has the right to exercise self-defense in the ways specified in the Labor Code Code of the Russian Federation, incl. by suspending work by the employee until the amount of the delayed wages is paid.

The position of the Supreme Court of the Russian Federation on relevant issues can be understood by studying the court ruling dated April 1, 2011 No. 5-B11-15 in a specific civil case.

The employee filed a lawsuit against the employer, indicating in the claim that in the period from May to July 2009, he was partially paid wages, and starting from August 2009, the employee was not paid wages at all.

The employee suspended his work with the employer on September 10, 2009 by sending a written notice to the employer.

In the statement of claim sent to the court, the employee asked to recover back wages from the employer from May to November 2009, i.e. for the entire period, including the period after the suspension of work.

The Presnensky District Court of Moscow partially satisfied the employee's claims, collecting from the employer in favor of the employee the arrears of wages from May to August 2009. The court refused the employee to collect from the employer the arrears of wages from September to November 2009, for the period after suspension by an employee of work due to non-payment of wages.

The Moscow City Court, in its ruling, upheld the decision of the Presnensky District Court of Moscow.
The employee filed a complaint to a higher court under supervisory review.

When considering the supervisory appeal, the Judicial Collegium of the Supreme Court of the Russian Federation came to the conclusion that when making their decisions, the courts of the first and second instances significantly violated the norms of substantive and procedural law, which influenced the outcome of the case.

According to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, an employee has the right on the basis of Art. 142 of the Labor Code of the Russian Federation suspends work in case of delay in wage plans for more than fifteen days before payment of arrears to the employee. In this case, the employee is obligated to notify the employer in writing about the suspension of work.
After the employee has notified the employer of the suspension of work, he may not be at the workplace.

Also, according to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, the employer is financially responsible for the delay in wages, and this responsibility occurs regardless of whether the employee filed an application for suspension of work or not.

The employer is obliged to pay delayed wages to the employee, including for the period after the employee’s suspension of work in the amount of average earnings.

Based on the results of the consideration of the supervisory appeal, the decision of the Presnensky District Court of Moscow and the ruling of the Moscow City Court were canceled regarding the refusal to collect wages from the employer in favor of the employee for the period after the suspension of work. The civil case was sent for a new trial.

In addition, from the ruling of the Supreme Court of the Russian Federation dated April 23, 2010 No. 5-B09-159, it follows that if, after an employee submits an application for suspension of work and the employee fails to show up for work, the employer dismisses the employee for absenteeism, the employee is subject to reinstatement at work due to illegal dismissal.

Main conclusions taking into account the requirements of the legislation of the Russian Federation and existing judicial practice.

Based on the requirements of the labor legislation of the Russian Federation, it seems completely legal to suspend work by an employee in the event of a delay in payment of wages for more than fifteen days.

At the same time, the possibility of suspension of work by an employee due to delayed wages does not in any way depend on the amount of wage arrears, which is confirmed by the above documents of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation.

If an employee is illegally dismissed after suspension of work, there is every reason to hope for the employee’s reinstatement at work through the court and the recovery of back wages and compensation amounts from the employer.

At the same time, in case of illegal dismissal and delay of wages, the employee should go to court and take into account that the courts of the first and second instances may incorrectly interpret the law, and therefore, the employee may need to go through all legal procedures up to the Supreme Court of the Russian Federation in order to obtain a positive result on the claim.

If the employer delays the employee’s wages for more than fifteen days, the employee has the right to submit an application to suspend his work, but the employee must retain a second copy of the said application with the employer’s mark of receipt.

If, after the suspension of work, the employee receives from the employer a notice of payment of delayed wages and an offer to return to work, the employee is obliged to return to work on the specified day in order to avoid subsequent dismissal for absenteeism.

The employee also has the right to appeal to the labor inspectorate or court to protect his interests. In this case, the employee is recommended to use the services of professional lawyers who will draw up all the necessary documents and represent the interests of the employee.

In addition to reinstatement, collection of back wages and recovery of other compensation amounts, the employee can ask the court to recover from the employer the cost of legal services provided to him.

The employee should keep in mind that the employer, among other things, bears criminal liability for partial or complete non-payment of wages in accordance with Art. 154.1. Criminal Code of the Russian Federation.

So, if the employer partially delayed wages for more than three months or did not pay wages in full within two months, the employee can safely file a crime report with law enforcement agencies. (“Partially delayed” means that the employer paid the employee less than half of the due amount of wages).

First of all, an employer who is delaying the payment of wages to employees must understand that judicial practice in disputes between employers and employees, including on issues of suspension of work by employees, is mainly inclined in favor of employees.

In this regard, it is advisable for an employer who has relevant problems not to bring the matter to the point of employees filing an application for suspension of work, but through negotiations with employees to try to find compromises, incl. offer the employee to resign of his own free will, by agreement of the parties, etc.

Resolving disputes with employees peacefully by the employer will protect the employer from litigation (collection of compensation amounts from the employer) on issues of illegal delay of wages or illegal dismissal.

Often, in order for an employee to quit by agreement of the parties, monetary compensation for workers is also required, but this issue is no longer relevant to the topic of this article.

By finding a compromise with the employee, the employer will avoid problems associated with the employee’s possible filing of a criminal complaint regarding partial or complete non-payment of wages to law enforcement agencies.

The employee's receipt of wages in the event of termination of the employer's activities and his insolvency is implemented in accordance with paragraph 1 of Art. 64 Civil Code. When a legal entity is liquidated, calculations for severance pay and wages are made secondarily after claims for payments for damage to life and health. The same rule is provided for an individual entrepreneur (clause 3 of Article 25 of the Civil Code). In case of bankruptcy, the organization's employees are also recognized as creditors in terms of payment of severance pay and wages and enjoy advantages over other creditors.

Establishment of terms and procedure for payment of wages.

Payments are made at least every six months on the day established by the internal labor regulations, collective agreement, or employment contract. If the payment day coincides with a weekend or non-working holiday, wages are paid on the eve of this day. Payment for vacation is made no later than three days before it starts. When an employee is dismissed, payment of amounts due to him is made on the day of dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment (Article 140 of the Labor Code).

When paying wages, the employer is obliged to notify each employee in writing about the components of the wages due to him for the relevant period, the amounts and grounds for deductions made, as well as the total amount of money to be paid. The form of the pay slip is approved by the employer, taking into account the opinion of the representative body of employees.

State supervision and control over the full and timely payment of wages and the implementation of state guarantees for wages is carried out by:

FEDERAL LABOR INSPECTION (FIT) is a unified centralized system consisting of a federal executive body authorized to carry out state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, and its territorial bodies (state labor inspectorates) carrying out supervision and control over compliance with labor legislation and other acts containing labor law norms on the territory of the Russian Federation. FIT carries out its activities in cooperation with federal executive authorities exercising control and supervision functions in the established field of activity, other federal executive authorities, executive authorities of constituent entities of the Russian Federation, local government bodies, prosecutorial authorities, trade unions (their associations), associations employers, other organizations State labor inspectors are under the protection of the state, independent from state bodies and officials and subject only to the law. Decisions of state labor inspectors can be appealed to the head of subordination, the chief state labor inspector of the Russian Federation and (or) to court. Decisions of the chief state labor inspector of the Russian Federation can be appealed to the court.

General Prosecutor's Office of the Russian Federation - The Prosecutor General of the Russian Federation and the prosecutors subordinate to him exercise supervision over the accurate and uniform implementation of labor legislation and other acts containing labor law norms.

Federal executive authorities, executive authorities of constituent entities of the Russian Federation and local governments exercise internal control over compliance with labor law in subordinate organizations

Trade unions have the right to monitor compliance by employers and their representatives with labor legislation and other regulatory legal acts containing labor law standards, and compliance with the terms of collective agreements and agreements

All-Russian trade unions and their associations can create legal and technical labor inspectorates, vested with powers defined in the provisions approved by these organizations. An interregional or territorial association of trade union organizations may create legal and technical inspections operating on the basis of provisions adopted in accordance with the standard regulations of the corresponding all-Russian trade union

The employer takes into account the opinion of the elected body of the primary trade union organization: when adopting local regulations containing labor law norms, when terminating an employment contract at the initiative of the employer, in other cases provided for by the Labor Code of the Russian Federation and other regulatory legal acts of the Russian Federation, collective agreements, and agreements.
Judicial protection - in accordance with Art. 45 of the Constitution of the Russian Federation, everyone has the right to protect their rights and freedoms by all means not prohibited by law. Individual labor disputes are considered directly in the courts: at the request of an employee for reinstatement at work, regardless of the grounds for termination of the employment contract, for changing the date and wording of the reason for dismissal, for transfer to another job, for payment for the period of forced absence, or for payment of the difference in wages for the time of performing lower-paid work, about unlawful actions (inaction) of the employer when processing and protecting the employee’s personal data; ?on refusal to hire persons working under an employment contract for employers - individuals who are not individual entrepreneurs, and employees of religious organizations