The position is the same, the salaries are different. What to do?

In conversations with representatives of different companies, we learned that employees whose work books indicate the same positions are expected to receive different salaries. We were interested in this, and therefore we decided to study this issue and try to determine how legal this is from the point of view of the Labor Code. The first acquaintance with the topic, oddly enough, showed that the employer is able to defend the right to the current state of affairs, but as soon as the employee files a claim against him, as in most cases, the court sides with the plaintiff.

Moreover, if the employer is unable to defend his point of view, he will have to pay a substantial fine by the standards of the Code of Administrative Offenses of the Russian Federation. In this article we will answer why it is better to make the same salaries for identical positions, whether it makes sense for an employer to argue with an “offended” employee, and we will provide step-by-step instructions for eliminating this difference if necessary.

Legal basis

According to Article 132 of the Labor Code of the Russian Federation, from the employer’s point of view, any discrimination against employees is excluded. Discrimination refers not only to race, gender, religion or any other basis, but also to differences in pay. In other words, if an employer “does not pay extra” to an employee for his honest work that complies with the job description, this is also a fact of discrimination.

Article 22 of the Labor Code of the Russian Federation, among other things, presents the obligations of the employee and the employer in relation to each other. Here we are interested in the paragraphs where it is said that the employer has the right to reward the employee for high-quality and efficient work and is obliged to pay wages within the terms established by the employment contract. Next, we draw attention to Article 3 of the Labor Code of the Russian Federation “Prohibition of discrimination in the sphere of labor”, where we emphasize once again the inadmissibility of differences between employees on any other grounds that are not related to the business qualities of employees.

We also focus on the entry: “Persons who believe that they have been discriminated against in the world of work have the right to apply to the court for restoration of violated rights, compensation for material damage and compensation for moral damage.” Moreover, Article 21 of the Labor Code of the Russian Federation provides for “timely and full payment of wages in accordance with one’s qualifications, complexity of work, quantity and quality of work performed.”

The last point is especially interesting to us, because It is precisely because of its content that disputes usually arise, and on the basis of it, both the employer and the employee can win a case in court. The essence of the problem comes down to how much and what kind of work is performed by employees with the same entries in the work book. If there are no objective grounds for these differences, the employer may not expect to win the case in court.

Court position

1) the content of the labor function - job responsibilities, working conditions and volume of work;

2) features of the remuneration system;

3) voluntary agreement on the terms of remuneration in the employment contract.

Let us consider the positions of the courts in more detail.

Contents of the labor function: it is not the name of the position that is important, but its content

The courts, following the legislator, proceed from the fact that the employee’s salary in accordance with Art. 132 of the Labor Code of the Russian Federation depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended, and for work of equal value equal pay is established (Article 22 of the Labor Code of the Russian Federation). Establishment of a remuneration system within the meaning of the norms of Chapter.

20–21 of the Labor Code of the Russian Federation – the right of the employer. It is he who determines the terms of payment - the size, procedure and conditions of payment: what the fixed amount will be and what additional payments / allowances will be. The main thing is that this does not contradict the law, does not infringe on legal rights and does not reduce the guarantees for employees. The employee can agree or refuse the proposed terms of remuneration (in the latter case, break up with the employer or take the dispute to court).

Work in the same position (profession) does not mean its same volume, complexity and quantity, and therefore the legislator gives the employer the right to provide for any conditions of remuneration, without limiting their maximum amount and guaranteeing a minimum amount of remuneration.

Labor legislation presupposes the establishment of the same official salary for employees occupying the same position and having the same scope of work responsibilities, and employees occupying the same positions, but having work responsibilities of different scope and complexity, may be set different salaries (appeal determination of the Altai Regional court dated March 26, 2014 in case No. 33-2530/2014).

A similar conclusion is found in the appeal ruling of the Supreme Court of the Udmurt Republic dated July 22, 2019 in case No. 33-3229/2019, the Moscow City Court ruling dated January 16, 2019 No. 4g-0219/2019, the appeal ruling of the Krasnoyarsk Regional Court dated July 22, 2013 in case No. 33-6699, Oryol Regional Court dated September 21, 2012 in case No. 33-1667, Irkutsk Regional Court dated July 24, 2012 in case No. 33-5975/12.

1. Contents of official (labor) responsibilities of employees.

Arbitrage practice

Two employees (K. and D.) were given different salaries for the same position (engineer). One of them (K.) considered this to be discrimination and went to court, asking to recover wages from the employer in the amount of the difference in salaries with D. The court refused, since D.’s duties are broader than those of the plaintiff: according to the job description, D. is obliged to hand over additional reports, incl. at the request of management, drive company vehicles when going out for emergency repair work, keep records of spare parts equipment, etc. In this regard, it was considered acceptable to establish a larger salary for a larger volume of work (appeal ruling of the Krasnoyarsk Regional Court dated July 22, 2013 in case No. 33 -6699).

In another dispute, the court also did not recognize the establishment of a higher salary for the plaintiff’s colleague as discrimination, since his job responsibilities included: blocking funds, tracking borrowers, calculating state fees, searching for and writing off funds from borrowers’ accounts, as well as working with pledged property, and the plaintiff did this in his official capacity. did not deal with the instructions and the employment contract (appeal ruling of the Altai Regional Court dated March 26, 2014 in case No. 33-2530/2014).

Thus, with different job responsibilities, workers have different contributions to the labor process, therefore, the salary is also different (see, for example, a similar conclusion in the appeal ruling of the Supreme Court of the Udmurt Republic dated July 22, 2019 in case No. 33-3229/2019).

2. Volume and conditions of work, qualifications and skills of workers, i.e. characteristics of work and business qualities of the employee.

The court refused to recognize the different salaries for the position of design engineer as illegal, since the plaintiff became a group 3 disabled person as a result of an industrial injury, he was given a shortened working week - 3 working days with full pay, and was granted two vacations - regular and additional “for disability”. He often gets sick and takes sick leave (up to 487 hours a year), which makes long-term planning for his participation in work in the team and development of documentation impossible. In addition, the plaintiff does not know how to work with design programs on a computer, which also does not allow him to perform the work in full according to modern standards of a design engineer. There is no information in the case materials about the plaintiff’s certification, and according to the terms of the employer’s LNA, remuneration depends on the results of the certification. In such circumstances, the establishment of different salaries was considered justified (appeal ruling of the Moscow City Court dated October 18, 2018 in case No. 33-45662/2018, ruling dated January 16, 2019 No. 4g-0219/2019, the Moscow City Court refused to transfer the case for consideration in cassation) .

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An electrician went to court when he learned that his colleagues at another substation had a higher salary. The court rejected the plaintiff's arguments because groups of substations had different numbers and categories according to the complexity of serviced substations and distribution points, the number of units of serviced equipment, and the number of operational requests for them. That is, the contribution of workers to the labor process was different, and therefore was regarded as a justified establishment of different amounts of wages for workers of different groups of substations (appeal ruling of the Supreme Court of the Republic of Bashkortostan dated February 15, 2018 in case No. 33-2993/2018).

The court drew attention to the volume of work: the same job title is not an absolute basis for establishing the same salary. Plaintiff:

• has less experience as a production shift manager (5 years), while another employee has 17 years of experience in this position;
• has 3 employees subordinate to him, while his other colleagues have 7 subordinates each (appeal ruling of the St. Petersburg City Court dated January 17, 2017 No. 33-1510/2017).

The employee was outraged by the different salaries in the head and regional offices, to which the court indicated that due to the difference in working conditions in the departments, this is permissible (appeal ruling of the Moscow Regional Court dated March 30, 2016 in case No. 33-8676/2016).

It is important to write down all the conditions in the LNA

As we noted above, in addition to “filling” the position (profession), the courts also pay attention to the employer’s remuneration system. After all, the salary is established by the employment contract in accordance with the employer’s current remuneration system (Article 135 of the Labor Code of the Russian Federation). Therefore, the court evaluates how the setting of salaries for the same position (profession) is regulated by a particular employer.

The bank’s local regulations define a system of grades within the position, i.e. It is allowed to establish different salaries for the same position depending on the nature, complexity of the work and qualifications of the employee, his achievements in work. There are steps within the grade: either a salary increase or a change in position is possible. Based on this and taking into account the difference in the job responsibilities of employees, the court recognized the practice of different salaries as justified (appeal ruling of the Altai Regional Court dated March 26, 2014 in case No. 33-2530/2014).

The court noted that the difference in salaries for design engineers is based on the current remuneration system in the employing company, taking into account the results of employee certification. Such establishment of differences based on the assessment of business qualities is not discrimination (appeal ruling of the Moscow City Court dated October 18, 2018 in case No. 33-45662/2018).

The court drew attention to the terms of the Labor Remuneration Regulations regarding the director’s right to set the level of remuneration for employees differentially, taking into account their contribution to labor results and qualifications. The manager has the right to determine:

• a level of remuneration for an employee not provided for by the regulations, in relation to the levels of payment for similar positions and professions in accordance with the regulations;
• individual conditions of remuneration for individual employees, which are reflected in the employment contracts concluded with them.

Based, among other things, on such wording of the LNA, the court took the employer’s side (appeal ruling of the Irkutsk Regional Court dated July 24, 2013 in case No. 33-5871/13).

Signed the contract voluntarily - agreed to different salaries

At the same time, judges often refer in their decisions to the fact that the employee voluntarily signed an employment contract with a corresponding condition on remuneration.

The courts highlight the fact that employees are familiar with the terms of remuneration, know the amounts of salaries established for them (official salaries, tariff rates) and agree with this. Employees, as a rule, do not provide evidence to the contrary, namely, that they are forced to sign an agreement on such terms. Employees most often do not express any disagreement with the terms of the employment contract in terms of official salary (salary, tariff rate) to employers during their work activities.

Moreover, the courts believe that it is from the moment the salary is received in hand that the period for applying to court for protection of rights begins to be calculated, and not from the moment the information is discovered that a colleague has a different salary (see, for example, the ruling of the Moscow City Court dated January 16, 2019 No. 4g-0219/2019, appeal rulings of the Supreme Court of the Udmurt Republic dated July 22, 2019 in case No. 33-3229/2019, Moscow Regional Court dated March 30, 2016 in case No. 33-8676/2016).

a) employees have different job responsibilities and/or nature (features) of work;

Why is it better to avoid salary differences?

Problems with salary differences can arise in two cases:

1. If the employee tries to appeal this difference in court;
2. If the labor inspector comes to visit you. Let us dwell separately on the second point.

Labor inspectors “will not hesitate” to clarify with you why workers in the same positions receive different pay for their work. The employer has one legitimate answer to this question: despite the fact that both sales managers (for example) have the same entries in their work books, they perform different duties from each other, and the level of their job responsibility also differs.

To such an answer, inspectors have the right to ask a counter question: why, in this case, did you, as an employer, not bother to reflect these differences in documents (the same work books, contracts, etc.)? Here it will be more difficult to answer and you will most likely have to pay a fine. So, according to Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation and Letter of Rostrud dated April 27, 2011 No. 1111-6-1, it will amount to 30,000 - 50,000 rubles, and the director himself will have to pay an additional 1,000 - 5,000 rubles.

An important point: it is advisable for the employer to avoid this discrepancy, since, in any case, labor inspectors will consider this state of affairs to be obvious discrimination against employees. The answer to the question of how to solve this problem is at the end of our article.

The main thing is the wording

It is clear that different salaries for the same positions (professions) can potentially lead to disputes with employees. If the employer decides to take them on, he will need to fulfill several conditions that will help minimize risks.

1. Checking and adjusting the wage system. Although the law does not directly prohibit the establishment of different salaries, the Labor Code of the Russian Federation makes reference to the employer’s remuneration system - it is in it that specific rules for remuneration should be defined. Therefore, we monitor whether, for example, the Regulations on Remuneration have the right to establish different salaries.

Example 1 Possible wording in the Regulations on remuneration regarding different salaries for one position (profession)

An employer may set employees different amounts of salary (official salary) for the same positions (professions) depending on job responsibilities, conditions, complexity, volume and nature of work (labor), and business qualities of specific employees. It is allowed in the employment contract to establish individual terms of remuneration for the employee, different from those specified in these Regulations, taking into account the employee’s business qualities, the nature of the labor function and the conditions for its implementation.

2. Establishment of various job (labor) responsibilities for employees. The employer will be required to justify why one employee earns more than another in the same position (profession). Therefore, it is desirable that the job responsibilities of the relevant employees differ. Of course, individual conditions may differ, and the complexity of the work may vary, but first of all, the court looks at the content of the official (labor) responsibilities.

Example 1 We are developing approaches to establishing differences in job responsibilities for one position (customer service manager)

Let's take the position of customer service manager as an example. Ivanov and Petrov were employed through it. Ivanov’s official salary is 25 thousand rubles, Petrov’s is 17 thousand rubles. How to justify this difference through the difference in job responsibilities? In this case, it is better to provide for such different job responsibilities in individual (nominal) job descriptions or directly in employment contracts, while simultaneously fixing the possibility of establishing different official salaries in the Regulations on Remuneration.

Please note: Ivanov not only has two more job responsibilities, but they are also qualitatively different - they are related to the development of methods and schemes for finding clients and interacting with them. But the job title is the same.

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You can also additionally justify the difference in salaries and the different scope of work. Let's say Ivanov is engaged in searching for and working with wholesale clients throughout Russia and the countries of the Customs Union. And Petrov – small wholesale and retail clients within the region.

What can an employee claim?

Agree, none of your colleagues will be pleased if you overcome all the “hardships and hardships” of working life together, and your official salaries are actually different. If this incident affected you personally, we recommend that you file a lawsuit against your employer, based on Article 3 of the Labor Code (unless, of course, you are afraid of ruining your relationship). Most likely, the court will approve your claim and oblige the employer to pay you “as it should.” Next, we formulate all the employee’s requirements that meet the requirements of the Labor Code of the Russian Federation:

• An employee can demand a difference in wages for the same positions;
• Compensation for delayed wages;
• Compensation for moral damages for discrimination by the company.

If the employer's arguments in his favor turn out to be untenable, the employee can count on the favor of the court.

Article 135 of the Labor Code of the Russian Federation

In accordance with Art. 135 of the Labor Code of the Russian Federation, an employee’s wages are established by an employment contract in accordance with the wage systems in force for a given employer. In turn, remuneration systems, including tariff rates, salaries (official salaries), additional payments and compensatory allowances, systems of additional payments and incentive allowances and bonus systems, are established by collective agreements, agreements, local regulations in accordance with labor legislation and other regulatory legal acts containing labor law norms.

The company also has the right to sue. But what's the point?

The main thing that the employer will have to defend in court is the absence of discrimination against the “offended” employees. In particular, the defendant company, in defense, can report the following:

1. An employee with a higher salary has a higher education, therefore his earnings are higher in comparison with employees who have a secondary specialized education;
2. This employee has a lot of responsibility (for example, managing the company’s key clients);
3. His level of qualifications and work experience differs significantly for the better in relation to other employees;
4. His professional skills are confirmed by certificates from independent training centers.

And further in the same vein...

The above arguments will be taken into account by the court during the hearings only if these rules are reflected in the company’s job descriptions. Without correctly executed documents, the chances of winning a case with an employer tend to zero. In view of this, we suggest that the employee and the employer resolve all disagreements out of court, since any legal proceedings are unlikely to have a favorable effect on the relationship between the two parties.

The situation needs to change!

Obviously, the salary discrepancy we are describing cannot last indefinitely. Sooner or later, the employer will be forced to do this either by labor inspectors or judges. Therefore, we will describe two methods that have been well proven in practice by leading companies in the country:

• Method No. 1 - “Set different categories of positions of the same name”

Try to adhere to the following sequence of actions:

1. Rank positions, for example, based on the complexity of the work performed. Here you can “split” specialists into 1st, 2nd, 3rd categories or add to the position the categories “junior”, “senior”, “leading”, etc.;
2. Develop job descriptions in accordance with the changes made with a realistic description of the requirements for each of them;
3. Approve the staffing table indicating positions and different salaries for them. Here it is much more convenient to issue an order approving the staffing table in a new edition and attach to the order the updated edition of the entire staffing table. As a basis, you can take form No. T-3, approved by Resolution of the State Statistics Committee of January 5, 2004 No. 1;
4. Next, notify employees who are being transferred to other positions in writing in any form. This is a mandatory requirement and is prescribed by Articles 72 and 72.1 of the Labor Code of the Russian Federation;
5. Draw up additional agreements to existing employment contracts with transferred employees. If at this stage disagreements arise with employees, the employer always has the right to explain that he (the employee) does not lose anything, since his documents will be drawn up correctly and in accordance with the Labor Code of the Russian Federation, which in the future will help him defend his rights in disputes with him (employer);
6. Issue an order for transfer to another position;
7. At the last stage, make an entry in the work book about the transfer to another position and the issue is resolved!

• Method No. 2 “Distribute different positions into different departments”

This method is to some extent “simpler” than the first, but it is applicable to relatively large companies with many divisions and departments.

1. Issue an order approving the new edition of the staffing table with the changed organizational structure of the company;
2. Approve job descriptions for positions changing departments;
3. With employees whose positions are being “moved” to another division of the company, formalize: transfer, if the structural division to which the employee was assigned is specified in the current employment contract; relocation if the structural unit was not specified in the contract.

Important

The issue we are describing affects mainly full-time employees who are not part of the management team of companies. If we are talking about heads of departments, directors of regional offices, then the above rules do not apply. If, say, the heads of regional divisions have different numbers of people subordinate to them, then it is quite reasonable to indicate different salaries for each of them in the staffing table - this should not become a reason for accusations from labor inspectors

What to do if an employee combines two positions

If an employee combines two positions, it is not necessary to make a double entry in the schedule. It is possible to implement these options:

• Combination of two specialties on the basis of Article 60.2 of the Labor Code of the Russian Federation.
• Internal part-time work on the basis of Article 60.1 of the Labor Code of the Russian Federation.
• Increasing service areas based on Part 2 of Article 60.2 of the Labor Code of the Russian Federation.
• Conclusion of a civil agreement for the provision of services.

Which option from the above would be the most optimal? Everything is determined by the specifics of additional work and its regularity. For example, if an employee is given one short-term task, it is not necessary to formalize this.