What liability can a manager bear for violating the Labor Code?

Home / Labor Law / Labor Code

Back

Published: 05/09/2017

Reading time: 10 min

0

673

Compliance with the norms and requirements of labor legislation is the responsibility of both the employee and the employer. In case of violation of legal requirements, certain liability may be applied to those responsible.

Moreover, possible measures against the employer are usually more serious, since the consequences of its violations can cause greater damage. Specific types of liability, as well as penalties, should be considered in more detail.

• Legislation
• Types of employer responsibilities Administrative
• Material The employer illegally deprived a subordinate of the opportunity to carry out work activities (Article 234 of the Labor Code of the Russian Federation)
• The employer caused damage to the property of his subordinate (Article 235 of the Labor Code of the Russian Federation)
• The employer delayed the transfer of wages or other payments required by law

Dear readers! To solve your problem, call hotline 8 or ask a question on the website. It's free.

Ask a Question

The legislative framework

The basic document defining the rules of cooperation between employee and employer is the Labor Code of the Russian Federation. It provides that those guilty of violating labor laws may be subject to disciplinary, civil, financial, administrative and even criminal liability.

It is important to note here that a person can be brought to justice only in the manner established by federal law. Therefore, the main documents on the basis of which the perpetrators will be held accountable are:

1. Labor Code of the Russian Federation. Regulates the limits and cases of disciplinary and financial liability. The procedure for imposing a penalty (compensation for losses in a limited amount) is established.
2. Civil Code of the Russian Federation. In this case, the procedure for bringing the guilty person to full financial liability or to civil liability is considered. May apply to parties to an employment relationship.
3. Code of Administrative Offences. Administrative penalties are usually applied to negligent employers for violating labor laws.
4. Criminal Code of the Russian Federation. Here the responsibility of the parties can be mutual. In case of repeated malicious violations on the part of the employer, such liability will apply to company officials. Regarding the employee, this is not so much a matter of violations of labor discipline, but indirect violations that lead to serious consequences (theft, fraud, corruption, violation of labor protection if there are victims, and others).

Other special laws. They usually concern civil servants, police officers, military personnel, prosecutors and other law enforcement agencies.

Remember, liability for violation of labor discipline can only occur if such a norm is provided for by law. The employer does not have the right to establish any rules not provided for by law or by-laws and hold personnel accountable for their violation.

Types of liability for violation of labor laws

Article 419 of the Labor Code states that there are different types of legal liability for violation of labor laws: disciplinary, administrative, material, civil and even criminal. Let us examine in detail what an employer’s liability may be for violation of labor laws.

Administrative

Most measures are described in Articles 5.27 and 5.27.1 of the Administrative Code. Can be applied to legal entities and officials (DL), as well as individual entrepreneurs. The main type is administrative fines, but others are also provided:

1. Warnings _ If the violation is committed for the first time and does not cause harm to health or threat to life, the commission may limit itself to a warning. In the Code of Offenses this measure is regulated by Article 3.4.
2. Disqualification DL. Installed for a period of 1–3 years. It means that a person loses the right to hold leadership positions in commercial companies and other organizations.
3. Suspension of activities. Appointed for a period of up to 90 days if continued work poses a threat to the health and life of workers. The most common violations are related to neglect of fire safety and labor protection standards.

There are several more articles of the Code of Administrative Offenses with fines for non-compliance with labor laws:

• 5.42 - is devoted to punishments for violation of the rights of people with disabilities.
• 18.15–18.17 - related to the work activities of foreigners.

Material

According to the norms of labor legislation, financial responsibility lies with those who caused damage to the other party in the labor interaction. That is, it can be not only the employer, but also the employee.

The main principle of this responsibility is that the offender must compensate for the damage caused. The amount and procedure for compensation are strictly regulated by law. The employer’s financial responsibility towards the employee is considered in Article 38 of the Labor Code of the Russian Federation. Among the most common cases:

• Unlawful dismissal or suspension from work, failure to issue a work book upon dismissal. In each of these cases, the employee loses the opportunity to earn money, so the employer must compensate for the lost profits.
• Damage or destruction of employee property. If this happens, the employer compensates for the damage based on the market value of the property. Late payment of wages. The employee has the right to count not only on full payment, but also on a penalty for delay.
• Moral damage to the employee. The amount that the employer pays in this case is determined by the parties during negotiations. If they do not agree, the court orders payment.

Criminal

Criminal liability for violation of labor laws is provided for in four articles of the Criminal Code:

• 143 - failure to comply with labor safety standards, due to which the employee died or suffered serious damage to his health.
• 144.1 - refusal of employment without reason, as well as dismissal of an employee simply because he is approaching retirement age.
• 145 - dismissal or refusal to hire a pregnant woman or a young mother whose child is less than three years old.
• 145.1 - withholding wages for longer than 2 months or incomplete payments for 3 months, if the employer has personal gain.

What are the penalties for these serious offenses? The extent of liability for violation of labor laws can be different: fines, removal from office and a ban on managerial work for a certain time, imprisonment.

Responsibility of officials for violation of labor laws

Sometimes managers demand that HR officers and other department heads violate labor laws. For example, it is beneficial to “correct the time sheet.” Don’t think that if something happens, the head of the company will bear all the responsibility. Responsibility is also provided for responsible executors. Including criminal law.

Types of employee liability for violation of labor laws

Material . As already mentioned, if an employer suffers losses because of an employee, financial liability may be applied to him (Chapter 39 of the Labor Code). For most workers, this is partial “material”, according to Article 241 of the Labor Code. It can also be complete; Articles 242–244 of the Labor Code are devoted to it.

Disciplinary . Also, employees have responsibility for violation of labor discipline; Section VIII is devoted to it in the Labor Code of the Russian Federation. The severity of the measure depends on the severity of the offense. It could be:

• Comment.
• Rebuke.
• Dismissal.

In some cases, managers also bear disciplinary responsibility. For example, heads of branches and divisions who neglect labor discipline. But it would be incorrect to call this the employer's responsibility.

Responsibility for violation of legislation on labor disputes

The law strictly defines how the parties must behave if a labor dispute arises. In particular, Article 416 of the Labor Code obliges employers to take part in conciliatory activities (provide a room for discussing demands, stipulate the conditions of a strike, etc.), as well as fulfill the agreements that were reached during such discussions.

Violation of this and other articles of the Labor Code that relate to labor disputes implies administrative and disciplinary liability. Possible measures include a fine in the amount of 10–30 minimum wages.

Common Disorders

All types of liability for violation of labor laws should be divided into two basic categories.

Responsibility on the part of the employer. The following most common violations should be included in this category:

• lack of staffing in the company;
• the employer does not enter into written employment contracts with employees;
• official salaries are established that are below the minimum wage;
• wages to employees are not paid on time;
• working hours are recorded incorrectly and overtime hours are not paid;
• the company does not maintain minimum safe working conditions;
• the terms of the collective agreement are violated;
• The administration does not provide its employees with earned paid leave for a long period (two years or more).

Disciplinary responsibility

The employer's disciplinary liability for violation of labor laws consists of imposing disciplinary punishment on the official who made a decision that undermines the rights of the employee. The manager will also be subject to disciplinary action.

Disciplinary sanctions against the head of an organization are imposed by his employer, the owner of the organization's property or his representative upon a complaint from employee representatives in the manner prescribed by Art. 195 Labor Code of the Russian Federation.

If the manager’s guilt is proven, he is subject to punishment up to and including dismissal.

Disciplinary liability of an employee may arise in connection with his commission of a disciplinary offense, i.e., failure to perform or improper performance of official duties assigned to him through the fault of the employee himself.

Permissible types of disciplinary action (paragraph 1 of article 192 of the Labor Code of the Russian Federation):

• comment;
• rebuke;
• dismissal on grounds provided by law.

For some groups of employees, this list of possible disciplinary sanctions is not exhaustive, since for them there are charters and regulations on discipline provided for by the relevant federal laws (for example, the Regulations on the discipline of railway transport workers of the Russian Federation, approved by Decree of the Government of the Russian Federation dated August 25. 1992 No. 621, etc.).

The imposition of disciplinary punishments not provided for by the Labor Code of the Russian Federation, statutes and regulations on discipline in accordance with federal laws is unacceptable (paragraph 4 of Article 192 of the Labor Code of the Russian Federation).

For example, some commercial organizations practice introducing fines for lateness, non-compliance with the appearance of employees established in the company, etc. Such sanctions are not legal. Administrative measures may be applied to the employer for violation of labor legislation (Clause 1, Article 5.27 of the Code of the Russian Federation on Administrative Offences).

An employee of an organization can be subject to only one type of disciplinary action for each disciplinary offense (paragraph 5 of Article 193 of the Labor Code of the Russian Federation).

The imposition of punishment for a disciplinary offense is not a mandatory measure; the employer, at its discretion, may not apply it (paragraph 1 of Article 192 of the Labor Code of the Russian Federation).

The form of disciplinary action is selected taking into account the severity of the employee’s offense and the circumstances of its commission (decision of the Altai Regional Court dated September 23, 2015 in case No. 33-8879/2015). You can read more about disciplinary liability in the article Disciplinary liability - a concept according to the Labor Code of the Russian Federation.

Who applies the penalty

Given the variety of different labor legislation norms, penalties can be applied by various authorities. An employee’s direct employer (the one who signed the employment contract with him) can hold an employee accountable for violations of labor laws.

Regarding the employer, the list of possible authorities that have the right to impose various types of penalties is very extensive:

1. State Labor Inspectorate. On all issues related to direct violation of working conditions, payment, correctness of labor relations, working hours.
2. Social Insurance Fund. Its competence includes violations regarding compensation payments from public funds. They are usually associated with incorrect paperwork.
3. Pension Fund. The area of ​​responsibility is the correctness of the calculation of seniority, the definition of positions, the preparation of staffing tables, and the storage of documents for which the state pension will be calculated in the future.
4. The Federal Migration Service. Issues of employment of foreigners are considered here. Documents, deadlines, compliance with the rules of behavior of foreigners defined by migration legislation.
5. Fire service. This includes issues of fire safety in production (both prevention and during the investigation of accomplished fires).
6. Prosecutor's office. Here the scope of activity is not limited. Prosecutor's office employees have the right to consider all issues related to violations of the rights of citizens, as well as the state, or the norms established by law.
7. Injured party. This term should be understood as applicants of claims in court for material or civil liability. There may be employees, employers, or government representatives.

Remember, the law clearly delineates the powers of each competent authority that has the right to make a decision on imposing penalties on the guilty person. Exceeding the limits established by law may result in criminal liability for such a person in the future.

Violations of the labor code by the employer

Basic:

• Failure to comply with the rules when concluding or terminating an employment contract
  , as well as unauthorized changes in its subject and conditions;
• Incorrect calculation of wages
  , as well as
  refusal to pay them
  , including in the event of dismissal of an employee;
• Incorrect organization of labor protection
  ;
• Violations of work and rest regime
  ;
• Refusal to provide guarantees and compensation
  ;
• Failure to comply with disciplinary labor standards
  and incorrect use of penalties;
• Failure to provide mandatory guarantees
  to certain categories of workers provided for by the Labor Code of the Russian Federation;
• If you are denied the opportunity to improve your qualifications
  ;
• Violations in the process of adopting regulations
  of local significance;
• Failure to comply with migration legislation
  and hiring foreign labor.

Material liability

This type of liability occurs in the event of direct losses to the company or employee. This may be damage or loss due to the fault of one of the parties to equipment, materials, or various valuables. Divided into two basic categories:

1. Full financial responsibility . In this case, the guilty person (party) is obliged to compensate the other party for all direct damage caused by his illegal actions. Can be applied to company managers, chief accountants, financially responsible persons, the list of which is determined by regulatory documents.
2. Limited liability . Applies to any guilty person. The essence of this type of liability is that the employee can be deducted no more than his average monthly salary.

Remember, before applying financial liability, it is necessary to clearly determine the amount of losses incurred by the party, as well as establish the limits of liability of the guilty party. If the guilty party does not agree with the claims presented to it, recovery can only be carried out in court.

Civil liability

Unlike financial liability, here the applicant can demand not only all direct damages, but also moral damage caused, as well as lost profits. This type of liability occurs exclusively in court. The plaintiff will have to prove why he is claiming the stated amount of compensation, and also provide compelling arguments in this regard.

It is important to note that civil liability may occur simultaneously with other types of liability. For example, disciplinary, administrative, criminal.

Remember, in order to bring the guilty party to full financial responsibility and force compensation for moral damage and lost profits, you will need to file a very detailed lawsuit in court.

Administrative responsibility

If, during the process of legal inspections of companies by competent government agencies, violations of labor legislation are discovered, the perpetrators (legal entities, managers and direct executors) may be held administratively liable. Among the types of administrative responsibility are:

1. Warning. It is always issued in writing in cases of detection of minor violations of labor laws that do not affect the financial losses of the company or the state.
2. Fine. It is an educational measure against the guilty person. Payment of the fine is mandatory. In case of repetition of violations, more severe administrative measures or criminal liability may be applied to the person who was brought to administrative responsibility.
3. Suspension of the company's activities. It is used in enterprises where many violations have been detected. Stopping activities is necessary to eliminate all shortcomings. Losses incurred due to downtime are not compensated.

Remember, state-authorized regulatory structures resort to administrative liability if significant violations of labor legislation are detected at the enterprise.

Commentary on Article 5.27 of the Code of Administrative Offenses of the Russian Federation

Comments on the articles of the Code of Administrative Offenses will help you understand the nuances of administrative law.

1. The commented article establishes administrative liability for violations of labor and labor protection legislation. The object of this administrative offense is the labor rights of citizens, including the right to safe and healthy working conditions guaranteed by labor legislation.

Legislation on labor and labor protection consists of a fairly large number of regulatory legal acts at both the federal, regional and municipal levels. At the federal level, the fundamental law is, first of all, the Labor Code of the Russian Federation, there are some other laws (in particular, Federal Law of July 24, 1998 N 125-FZ “On compulsory social insurance against industrial accidents and occupational diseases”) and other regulatory legal acts.

The disposition of the commented article is of a blanket nature and is not specified. A wide variety of violations (actions and inactions), but, above all, those that entail a violation of the labor rights of employees and employers within the framework of the employment contract they have concluded may fall under its action for “violation of labor and labor protection legislation.” At the same time, it should be borne in mind that violations of a number of labor legislation norms form administrative offenses under Art. Art. 5.28 - 5.34, 5.42 Code of Administrative Offenses of the Russian Federation.

2. The objective side of the administrative offense provided for in the commented article is expressed in actions (inactions) that violate specific norms of extensive labor legislation, including labor protection. This article may include, for example, actions that violate the legally guaranteed rights of citizens:

- to get a job, the right to receive guarantees and compensation, to be provided with vacation and other types of rest, to timely payment of wages;

— unlawful transfers to another job, unjustified dismissals;

- actions that violate some special rights and guarantees provided to certain categories of workers (minors, disabled people, pregnant women, etc.).

This administrative offense can be committed in the form of both an action (for example, illegal transfer to another job) and inaction (for example, non-payment or delay in payment of wages).

As for violations of labor protection legislation, these may be encroachments on the current system of norms of the Labor Code of the Russian Federation (Chapters 33 - 36) and safety regulations in force in certain sectors (spheres) of industry, construction, transport, etc. . (for example, the procedure for conducting instructions, implementing measures for individual and collective protection of workers, supplying them with medical nutrition, etc.). From January 1, 2020, violations of labor protection legislation entail administrative liability under a special article. 5.27.1 Code of Administrative Offenses of the Russian Federation (see Federal Law of December 28, 2013 N 421-FZ “On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Adoption of the Federal Law “On Special Assessment of Working Conditions”).

The objective side of the offense provided for in Part 2 of the commented article is expressed in actions (or inaction) that violate the same norms of the current legislation on labor and labor protection, which are meant in Part 1 of the commented article, but by an official who was previously subjected to administrative punishment for a similar administrative offense. Such a person is subject to disqualification by a court decision, as provided for a number of officials in Art. 3.11 Code of Administrative Offenses of the Russian Federation.

It should be taken into account that a “similar offense” should be understood as the commission by an official of the same (and not any other) violation of labor and labor protection legislation, and within 1 year from the date of completion of the previous resolution imposing an administrative penalty for such the same administrative offense (see paragraphs 16 and 17 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2005 N 5).

The offense is considered completed from the moment of commission of any of the violative actions (or inaction - from the moment of expiration of the period established by law for the fulfillment of the corresponding duty or authority).

3. The subjects of the offense in the article are: an official, an individual entrepreneur (a person carrying out business activities without forming a legal entity), as well as a legal entity - an organization, regardless of its legal form and form of ownership. An ordinary employee cannot be held liable under this article of the Code of Administrative Offenses of the Russian Federation.

An official is a manager (or other person of an organization) who has the characteristics of such in accordance with Art. 2.4 Code of Administrative Offenses of the Russian Federation.

For legal entities and individual entrepreneurs who are employers, as an alternative to an administrative fine, the article provides for such a type of punishment as administrative suspension of the activities of these persons for a period of up to 90 days (see Article 3.12 of the Code of Administrative Offenses of the Russian Federation).

In part 2 of this article, the subject of administrative liability is an official who was previously subjected to administrative punishment for a similar administrative offense (see paragraph 2 of the commentary to this article).

As practice shows, employers can be not only organizations (legal entities) and individual entrepreneurs, but also other persons (for example, notaries, private detectives, citizens using the labor of a housekeeper, nanny, driver, etc.). However, the article under comment leaves open the question of administrative liability under this article for employers who are neither legal entities nor individual entrepreneurs.

The subjective side of the offense is characterized by an intentional form of guilt (direct intent) or negligence (see Article 2.2 of the Code of Administrative Offenses of the Russian Federation).

Officials of the federal executive body exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms have the right to draw up protocols on administrative offenses. Currently, this is the Federal Service for Labor and Employment and the state labor inspectorates subordinate to it in the constituent entities of the Russian Federation (Part 1, Clause 16, Part 2, Article 28.3; Article 23.12 of the Code of Administrative Offenses of the Russian Federation). Administrative suspension of activities or disqualification as punishment is possible only by by the judge's decision (Article 23.1 of the Code of Administrative Offenses of the Russian Federation).

Criminal liability

For the most serious violations of labor legislation, criminal liability may be applied to the perpetrators. Severe violations include:

• deliberate non-payment of wages to employees for more than 2 months;
• ignoring labor safety standards, which is why employees are injured at the enterprise;
• dismissal, at the initiative of the employer, of a pregnant woman, if the employer knows about the employee’s pregnancy;
• others similar.