Limitation period for recovery of wages, dismissal

The statute of limitations for labor disputes regarding the collection of wages is an issue that worries many today.
Due to the massive reductions and layoffs that are observed in the labor market in the modern world, this issue does not lose its relevance in 2020. In this regard, we have selected up-to-date information on what the statute of limitations is for a claim if an employee wants to recover wages. The article is devoted to the limitation period for collecting wages. In the article, the reader will learn what documents should be attached to the claim, the amount of moral damage due to non-payment of wages on time, what an individual labor dispute is and what to do if a claim for recovery of wages is filed against an employee.

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general information

In accordance with the Labor legislation of the Russian Federation, the employer must make a full settlement with the employee no later than on the day of dismissal. But sometimes the former employer, under various pretexts, provides favors to the employee.

Many in such situations try to solve this problem in a “peaceful” way, periodically reminding the unscrupulous employer of themselves. But, unfortunately, in most cases, no one is going to pay the employee, and he is forced to initiate legal proceedings.

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Labour Inspectorate

Sometimes it is not possible to pay off the debt this way. In this case, you can continue the fight for your rights by contacting the Labor Inspectorate. This institution is seen as a protector of employee rights.

After the complaint, an investigation will be carried out. In accordance with its results, the Labor Inspectorate will take action. It can not only forcefully collect the amount of debt owed to employees, but also impose penalties on officials and the enterprise. An audit of the company's activities may be initiated. After the appeal has been made, the institution is given 30 days to sort it out and take action.

Completing the application is not difficult. It is written to the boss in free form. The document must detail the circumstances of the case. Your requirements must be justified with relevant documents.

What documents must be attached to the claim?

But you can file a complaint with the court only within a certain period after your dismissal, which is determined by the statute of limitations for labor disputes regarding the recovery of wages. The statute of limitations on this issue in 2020 is determined by Article No. 362 of the Labor Code of the Russian Federation.

The statute of limitations for claims for payment of wage arrears in 2019 is:

One month following the moment the employee receives a copy of the dismissal order.
Three months from the moment the plaintiff discovered a violation of his rights.

In the first option, the situation with the period in which it is possible to file a claim is more clear - the statute of limitations for collecting wages in such situations is easily determined, because it is documented.

In the second option, it is much more difficult to find out the specific date of the employer’s violation of the employee’s rights. In addition, in this situation, the court does not take into account the testimony of the employee and his colleagues, guided only by information about the dates of dismissal and payment of wages.

In addition, when deciding the issue of non-payment of wages in the second case, the court takes into account the following points:

Whether the employment relationship with the plaintiff was terminated, and whether the plaintiff’s salary was accrued. In addition, it is taken into account whether the offense is of a continuing nature.

If the employee was not fired, his salary was accrued but not paid, then the defendant’s statement about the expiration of the statute of limitations for filing a claim with the courts is not taken into account. The defendant, due to the ongoing nature of the violation, is obliged to pay the plaintiff wages and arrears during the period of validity of the employment contract.

Whether the defendant refuses to pay wages to the plaintiff.

Tax authorities believe that the moment of violation of employee rights is the company’s refusal to pay wages. It is from this time that the countdown of three months begins.

Date of the first day of delay in payment.

The date the employee received his salary is documented, so the moment of violation of his rights can be considered the first day of delay in payment of the salary.

The date on which full payment was made to the employee (including all interest incurred due to the delay).

In addition to recovery of wages, the employee has the right to receive monetary compensation from the employer due to overdue payments. The statute of limitations for collecting compensation can be calculated from the moment the defendant repays the debt for unpaid wages.

Recovery after dismissal

In this case, it is no longer possible to do without taking into account the statute of limitations. As already mentioned, for such requests the period is three months. It is subject to revision in case of omission only if there are valid reasons. Usually the period is counted from the moment the person was fired.

There are other social guarantees that protect the rights of employees. If payment is overdue by two weeks or more, the employee has the right to terminate the employment relationship before the debt is repaid in full. The main thing is to warn the other party about this in advance, in writing. Once the payment is received in full, the employee can return to fulfilling his obligations the next day.

But it is worth remembering that compliance with court order requires a lot of effort and time. It is recommended to enlist the support of a specialist who works specifically in this field.

What amount of compensation can the plaintiff expect?

From the third quarter of 2020, the defendant will have to pay the plaintiff compensation in the amount of 1 to 150 (previously it was 1 to 300). In addition, the interest rate is determined by the key rate set by the Central Bank. At the moment it is 10.5 percent.

Date of dismissal. If the employee is not paid on the day of dismissal, then the countdown of three months begins from this date.
Events that preceded the dismissal. An example of such an event could be the moment an employee is deprived of authority.

In what cases is the plaintiff given one month to submit documents to the court, and in what cases – three months?

In this matter, everything depends on whether there is an individual labor dispute between the two parties in the situation.

Prosecutor's office

If, from the employee’s point of view, the Labor Inspectorate has not helped, you can contact the Prosecutor’s Office. However, it will conduct an investigation only if it sees elements of a crime. Otherwise, the papers will be sent to the Labor Inspectorate for consideration.

It is allowed to apply to both of these authorities at the same time. However, these authorities will not consider cases where the amount of payments not received by the employee is not agreed with management. In such a situation, it will be effective if the employee files a lawsuit.

When the salary was calculated in the accounting department, but the payment did not occur. The employee in this situation fills out an application. The court, if it agrees with the plaintiff, will grant a court order for the payment of money. This document is handed over to the plaintiff. The manager is given 10 days during which to comply with this order.

The concept of an individual labor dispute

Let's consider two situations:

Situation one: the employer does not pay the employee due to lack of funds, but the very fact of the debt and its amount do not cause disputes among the parties.
Situation two: the employer refuses to pay the debt at all, or the parties cannot come to an agreement on the amount that the defendant owes the plaintiff.

In the first situation, there is no individual labor dispute, but in the second, it is present. That is why, in the first case, the length of time when an employee can file a claim is one month, and in the second - three.

About statute of limitations for various claims

Disputes over additional payments for work on holidays

Payments related to the performance of duties on weekends and holidays are classified as compensation. They relate to direct wages, so the rules apply the same as in other situations described above. The employee receives money on standard days when he is paid for his work, but no later than the 15th day from the beginning of the month when he worked on a day off.

Vacation pay disputes

Compensation is paid on the day of dismissal if the employee has not taken leave before this point. Often employees are not satisfied with the amount of such compensation. Courts usually rule in favor of company executives.

Overtime

Many employees rely on the goodwill of the other party when it comes to remuneration in connection with overtime. Rarely does anyone agree to enter into conflict when resolving this issue, which is why debts accumulate not only over months, but over years.

Previously, the court satisfied claims only for three months, even if it was proven that payments had not been received for longer and that there had been a violation of deadlines. Nowadays, the chances of receiving the maximum recovery have become greater.

As for summarized time tracking, separate rules apply. For example, if a settlement with an employee was made on January 11, 2020, then he can file a claim with the court before January 10, 2020.

Article 392 of the Labor Code of the Russian Federation indicates when you can go to court to protect your legal rights. The court usually applies the limitation period only if the statement from one of the parties was drawn up before the final decision was made. The same rule applies to any labor disputes.

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Consequences of failure to comply with the statute of limitations when filing an application

Even if an employee decides to recover wages through the court after the statute of limitations on the claim has expired, the court does not have the right not to accept his claim. In addition, the court simply must consider this application. And only if the defendant (in this case, the employing company) files a motion that the deadlines for filing a claim have been violated, the court, taking into account good or bad reasons why the deadlines for filing a claim were not met, can issue a verdict.

If the deadlines were not met for unjustifiable reasons, and the defendant claimed that the claim was time-barred, then the court may side with the defendant and refuse to pay the employee.

The following reasons may be considered valid:

Illness of the citizen filing the claim or loved ones for whom care was needed, if the fact of the illness itself is documented.

Territorial remoteness of the place of work and the place where the claim was filed - such cases often arise with citizens who work on a rotational basis.
Legal illiteracy of the plaintiff.
The plaintiff is on a business trip.
Situations when the defendant, evading payments, refuses to provide the plaintiff with the documents necessary to file a claim, or changes the legal address or name of the organization.

In addition, if the court receives evidence that the employee received a salary less than the minimum wage, the employer will be forced to compensate the difference in payment to the employee for the entire period of his work.

Actions of an employee when the limitation period is missed

When going to court outside the statute of limitations, the employee should not indicate this circumstance in the application. The fact is that the court cannot, on its own initiative, apply the statute of limitations and refuse the claim. It is necessary that the corresponding statement comes from the defendant.

In this case, the defendant is the employer. The statement may be made orally or in writing at any stage of the consideration of the case, but before the decision is made. Statements about missing a deadline from other persons, for example, a third party to the dispute, have no legal significance in the case (clause 2 of Article 199 of the Civil Code of the Russian Federation and clause 10 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated September 29, 2015 No. 43).

Practice shows that employers almost always use this right. In this case, the employee needs to prepare a petition to restore the missed deadline.

How to draw up a statement of claim correctly?

Despite the fact that the court often considers legal illiteracy a valid reason, in order to save time and money, you need to learn how to correctly draw up a statement of claim. Of course, to draw up such a document, you can turn to lawyers, but their services are not cheap, so next we will look at the most pressing questions that many often have.

If a company has several branches, which one should be indicated in the document?

An important point when drawing up such a document is the legal address of the company. If the company you previously worked for has several branches, then the application must indicate the address of the company's head office.

Missing a deadline: what are the consequences?

The court cannot refuse to accept an application simply because the time for drawing up the application was missed.

Consideration of a labor dispute on its merits in any case remains the direct responsibility of the authority. If the absence did not have a valid reason, then additional sanctions are imposed and consequences are applied. But the main basis for such actions is an official petition from one of the parties. Then the second participant must prove that the reasons for missing were valid, and this issue can be very difficult to resolve.

Claim structure

Any such document must comply with the requirements. Correct structure is one of them.

This document should have three parts:

introduction;
main part;
resolution.

Let's take a closer look at each of them

Introduction

This part should contain the following information:

Name and address information about the court in which this document is being filed

Information about the plaintiff: last name, first name and patronymic, as well as address. If the registration address differs from the residential address, then the residential address is indicated in the document.
Information about the company against which this claim is being filed: organizational and legal form, name, legal and actual addresses, tax identification number and checkpoint
The amount that the plaintiff demands from the employing company.

Main part

In this section, you need to accurately and briefly describe the situation that arose, the cause of which was this statement of claim.

This part must contain:

information about labor relations between the parties;
employee salary;

the time interval during which the arrears in payment of wages arose;
information about attempts to resolve the problem out of court;
information on the calculation of the amount that the plaintiff demands from the defendant.

In addition, the plaintiff has the right to demand compensation for violation of deadlines for payment of funds, as well as compensation for causing moral damage.

Resolution

In this paragraph, the plaintiff must indicate the requirements that he makes to the employer in this document: collection of debt, compensation, other costs (for example, funds spent on lawyer services, etc.). Here you must list the documents attached to the application.

Documents whose copies must be attached:

orders on hiring and dismissal;

employment contract;
certificates about the amount of salary and its components;
extract from the work book;
certificate in form 2 personal income tax and others.

Most of these documents must be provided by the former employer upon application from the plaintiff.

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About the statute of limitations on deposited wages

Separately, the state explains the procedure for recording and paying salaries and scholarships that were not transferred from the cash register in a timely manner. Organizations and businesses must keep data on these amounts for a maximum of three years. If an individual has not received this amount, then by the end of three years it must be transferred to the budget. Forms, reports and invoices are created separately in this direction.

According to Government Resolutions, deposited wages are funds in cash that were received by managers for accruals related to remuneration for labor and which are not paid within the period established by law.

Wages may be kept at the company's cash desk for a maximum of three days. The cashier is required to perform several actions if the payment is not made:

Statute of limitations on wages

Reconcile the payment data with the money that was issued in person. This is necessary to identify discrepancies and identify the so-called depositors. This designation is used for persons who do not receive remuneration for their work on a timely basis.
Cashiers make an inscription about deposit opposite the names of those employees who did not receive payment within the appropriate time frame.
After this, they proceed to compiling a register with the deposited amounts.
The end of the expense statement should contain information about exactly what amount was actually paid and what funds were not received.
The corresponding entry is made in the cash book. One general cash order records all amounts deposited. The next time you pay your employees, they will be compensated without fail.

Changes in legislation: what else do you need to keep in mind?

Please note that the new statute of limitations applies to cases where an employee filed a lawsuit after October 3, 2016. If the salary delay occurred before, and the employee has already been fired, then there is a chance to receive compensation, but only if the plaintiff can prove the existence of good reasons, and also if the company itself does not file a corresponding petition.

In addition, an employee has the right to go to court if he continues to work for a company that has not paid him wages for the past period, including for the past year (or even years). In such a situation, the continuing offense rule applies.

Missing the statute of limitations can lead to significant problems. To prevent this from happening, it is better not to delay the proceedings. And if you don’t have the time, energy or ability to do everything yourself, you can entrust the management of affairs to lawyers. Contact us!

Compensation for delayed wages

Payment of wages is the direct responsibility of the employer. Violation of the terms and conditions of payments entails civil liability.

The minimum amount of monetary compensation is established by Article 236 of the Labor Code of the Russian Federation and is 1/150 of the key rate of the Bank of Russia, which is in effect at this time.

10,000 rubles (debt amount) x 1/150 x 9% (key rate of the Central Bank of the Russian Federation) x 30 days (delay period) = 180 rubles (compensation for delayed payments).

The maximum amount of compensation by law is left at the discretion of the parties to the labor relationship and can be fixed in the employment contract or local regulations of the employer.

Payment of compensation must be made on the day the salary is paid. The obligation of such payment is not affected by the circumstances that contributed to its occurrence. That is, the presence or absence of the employer’s fault is not taken into account.

If the employer refuses to pay compensation for delayed wages, the employee has the right to demand it in court.

For the employer, this threatens with additional costs in the form of compensation for moral damage and legal expenses (lawyer services for preparing the necessary documents and/or representing the employee’s interests in court). Also, by court decision, the established amount of state duty is collected from the employer, from which the employee is exempted.

Claims related to overpaid wages

Less often, but still, situations occur when an employer files a lawsuit in order to reimburse expenses for overpaid wages.

Even if an employee has a debt to the company, the company cannot refuse to issue documents and final payment to him, so such situations do occur.

The main reasons for the formation of employee debt to the company:

The employee was given an advance by the company, which was not fully worked out.
The employee was awarded a bonus incorrectly.
The employee who resigned did not fully work out his vacation days.
And others.

What can be done to solve this problem?

You can deduct the debt from the final settlement;
You can ask to voluntarily return the amount owed.

There are several nuances here. Firstly, you can withhold no more than 20 percent of the final settlement amount. And secondly, deduction can be made only if the employee fully agrees with its amount and does not intend to challenge the very fact of deduction.

forgive a debt;
collect debt in court.

So, the resigned employee refuses to return the funds transferred to him incorrectly, and the company goes to court.

To do this, the company must provide the following documents:

Employment contract with the employee.
Documents confirming the payment of funds that must be returned.
Documents confirming the payment error.
A notice that was sent to a former employee with an offer to return the incorrect amount received.

The period within which a company can file a claim is one year from the date of discovery of an error in calculating payments.

about the author

Valery Isaev

Valery Isaev graduated from the Moscow State Law Institute. Over the years of work in the legal profession, he has conducted many successful civil and criminal cases in courts of various jurisdictions. Extensive experience in legal assistance to citizens in various fields.

When is recovery possible?

If there are good reasons:

disease;
caring for a seriously ill family member;
irresistible force;
business trip -

the court will most likely agree that the statute of limitations should be restored. These facts will have to be proven, and the acceptance of evidence and assessment depend only on the internal conviction of the judge. Thus, the statute of limitations for the collection of wages is a concept associated with legal proceedings.

Basic Concepts

The concept of an individual labor dispute is considered by the Labor Code in Article 138.

In this case, we are talking about the fact that there are disagreements between the employee and the manager related to the scope of implementation of labor legislation.

This concept may include:

Disagreements in matters of legislation, application of the provisions of the employment contract, collective agreement. In this case, it is necessary that this be addressed to the body responsible for resolving individual labor disputes.
This includes consideration of disputes that have arisen between the company and a former employee.
Conflicts that arose during employment fall into this category. For example, situations are considered where a person was wrongfully denied employment.

Such conflicts vary depending on whether they occur with officials or with an organization.

Various procedures may be used:

A situation where a decision is made in a general manner. In this case, they first turn to the labor dispute commission, then, if a solution is not found, a lawsuit is filed in court.
In some types of disputes, recourse to court is provided.
For some types of conflicts, a special procedure for consideration is used. In such situations, the decision is made either by a higher authority or by the court.

The jurisdiction of a particular dispute is established by law. In most cases, appeals are made to the labor dispute commission. It is organized at the enterprise. The commission should include an equal number of representatives of workers and management. Such bodies can operate at the organizational level or be formed in structural divisions. In the latter case, only those issues that are within their jurisdiction can be considered.

The commission is required to have a seal. Material and organizational support must be provided by the company's management.

If there is a need to go to court, the initiator may be an employee, boss or trade union organization.

If wages are not paid in whole or in part, a statute of limitations usually applies. But in cases where, despite the problems that have arisen, the employee continues to remain in the company and does not stop working, the violation is considered ongoing.

Usually the period is counted from the moment when the violation occurred or the person learned about it. However, if the violation is ongoing, this period does not even begin. Therefore, those who continue to work have the right to make relevant claims at any time.

If one party requests that the statute of limitations be applied, the claims in the lawsuit may be denied. Provided that the request is made at any stage before the final decision is made, and the missed deadline is confirmed by materials provided to the court.

Salary arrears

Payroll, according to general rules, is carried out on the same day when the employee is fired. But employers often violate even such basic provisions, which is why employees are forced to go to court to collect arrears of remuneration for work. The citizen is confident that he is right and appears at the court hearing.

But often the courts in this case report that the demand for recovery of wages should have been filed three months after the right was violated, or after the plaintiff learned about the violation. This statement comes as a surprise to many.

When decisions are made in such cases, the courts assume that employees will become aware of the violation of their rights on the same day that the payment of wages should have occurred. Since it is actually absent, some lawyers are trying to circumvent the rule about this period. They are based on the fact that the violation of rights in this area itself is of a continuing nature and persists as long as the employment contract is in force.

There is a different time for employers to go to court. Usually it is longer. For example, you can file a lawsuit within a year after it is determined that the employee's actions resulted in serious harm.

If the employment contract continues to be valid and wages are not paid, to resolve the problems you must contact:

to the court
prosecutor's office
Labor Inspectorate

Going to court

The time limit for going to court does not begin to count in the case of an existing employment relationship. This means that the violation of rights only in this situation will differ in its continuing nature. The employer must accrue not only wages, but also other amounts that were delayed. The obligation is assigned for the entire duration of the employment contracts.

But employees have the right to recover only official wages in court. Other types of income can also be demanded, but only if there is serious evidence. Such claims are referred to as claims for unaccrued wages. Witness testimony in such cases is not taken into account.

The right to sue for non-payment of wages during the year

However, based on current legislation (the data is current at the beginning of 2020), a dismissed employee has the right to go to court within a year after he was supposed to be paid off. And since the issuance of all money is made on the same day when the employment relationship is terminated, and the corresponding contract is considered terminated, then the statute of limitations must be calculated based on this date.

Please note that we are talking about a year, and not about 3 months, as it was before. This innovation came into force on October 3, 2016. All courts have been notified about this, so there should be no violations of rights by the latter. But if someone still refers to outdated norms, you can simply contact a lawyer to clarify the situation (or point out the relevant changes).

There are different circumstances in life. For example, an employee quit, but was unable to come to collect the salary he was entitled to in person (he got sick, that is, for a good reason). When he finally ended up at the enterprise, he learned that the settlement with him was made in a smaller amount than expected. In this case, the limitation period must be counted from the corresponding date.

Sometimes an employee is given a bonus or compensation, but is not informed of the issued orders. In such a situation, the limitation period for the specified payments begins for him from the day when this became known. What can be proven by testimony (for example, if former colleagues told him) or by providing the court with relevant correspondence.

Deadlines in connection with compensation for the provision of a work book with a delay

Providing a work book with a delay applies to other violations of the Labor Code, for which the statute of limitations continues to remain the same, that is, 3 months. True, the court's decision may be ambiguous. In practice, even when submitting an application after the specified period, sometimes conclusions were made in favor of the employee. In particular, the courts argued that the provision of a work book with a delay is a continuing offense. Therefore, the statute of limitations must be counted from the moment the former employee received the document.

Claim for recovery of wages

A claim for recovery of wages must meet the requirements of the Civil Procedure Code of the Russian Federation, in particular Articles 131 and 132.

What should you pay attention to when filing a claim for recovery of wages?

Determination of jurisdiction of the dispute. Current legislation establishes it at the location of the legal address of the defendant or at the place of execution of the employment contract. Moreover, such a place must be fixed in the employment contract. For example, the employment contract indicates the city, street and house in which the workplace is located.
Calculate and indicate the amount of the claim price. The calculation may be incorrect or inaccurate. However, this is not a basis for leaving the claim without progress.
Indicate the circumstances of the dispute and references to the norms that the employer violated.
Correctly write the claims in the pleading part of the claim.
Be sure to sign the statement of claim, indicating your name and date.
In the appendix to the claim, indicate the required number of copies of documents (according to the number of participants in the civil case). Attach a calculation of the requirements and evidence in the case.

Failure to comply with one of the requirements imposed by law entails procedural consequences in the form of leaving the statement of claim without progress or returning the claim to the applicant. If such circumstances occur, the plaintiff must ensure compliance with the relevant court requirements.

In addition, compliance with all the requirements of the law does not guarantee the unreasonable abandonment of the claim (return of the claim) by the court. In this case, the court's ruling is subject to appeal.