Full or limited liability? How is an employee responsible for damage to the employer's property? Sbitneva O.

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Published: 05/09/2017

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According to labor legislation, two main types of financial liability are established for employees of organizations and enterprises - full and limited or partial, that is, with incomplete compensation for damage. This limitation means that the size of the payment in favor of the employer depends on the size of the employee’s monthly salary.

According to the general rules, damage caused to the property of an enterprise or organization is compensated in an amount not exceeding the amount determined by law..

If this amount is less than or equal to the salary, it is paid in full. But an unpleasant situation, when the damage is estimated at an amount significantly exceeding the salary of the offending employee, is resolved by deducting a portion determined by law, equal to the amount of the salary. The remaining damage will be attributed to the employer’s losses (Article 241 of the Labor Code).

When does limited liability occur?
Setting Limits of Liability
Procedure for attraction

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What is limited financial liability of an employee?

Important! Limited financial liability of an employee involves compensation by the employee for damage caused to the employer in the amount of actual damage, but not exceeding the limit of salary deductions approved by law.

Limited financial liability of a company employee is said to exist if 2 necessary conditions for its occurrence are met:

Damage to the employer's property is caused during the performance of the employee's work functions.
Damage occurs due to careless handling of property or due to negligence.

In some cases, full financial liability occurs (the full list of situations is strictly regulated by Article 243 of the Labor Code of the Russian Federation):

if the employee intentionally caused damage to the employer (stole, intentionally damaged);
if the damage was caused due to the subordinate’s failure to fulfill his official duties established by the employment contract.

If the employee did not commit an action (was not inactive), which would result in full financial liability, it is automatically considered that he must bear limited liability. responsibility.

The procedure for bringing the culprit

Let us give a brief algorithm for the actions of the organization’s management in the event that an employee committed actions that resulted in losses. For example:

the employee did not show up for work and because of this, other employees received forced downtime;
the organization was fined due to the guilty actions of an employee;
as a result of inattention or negligence, the company’s material assets were damaged;
tools or valuable documents were lost;
equipment breakdown occurred due to the fault of its operator, etc.

In any of these cases, the company management needs to:

appoint a special commission to investigate the case;
give the employee the opportunity to explain what happened (guilt is a mandatory sign of a disciplinary offense);
determine the amount it will cost to compensate for the loss (calculation is carried out on the basis of market prices, taking into account normal wear and tear of the property and its book value);
draw up a report on the situation with the conclusions of the commission;
issue a final order if it is determined that the employee must be liable for damages.

All documents must be familiarized with the employee's signature, as well as the members of the commission. All orders and acts must be filed and stored in the prescribed manner.

The legislation reserves the right of the employer to reduce the amount of the penalty or refuse it altogether (Article 240 of the Labor Code of the Russian Federation). In addition, damage cannot be recovered if it arose due to circumstances of force majeure or necessary defense, actions related to ensuring the safety of life and health of people, and also if the company’s management did not provide the necessary conditions for storing the entrusted property.

In what cases is limited financial liability of an employee applicable?

Important! A closed list of cases in the event of which a subordinate bears limited financial liability is not established at the legislative level, but the law precisely defines the limit of financial liability for some special cases.

Absolutely all employees bear limited financial liability to the employer:

full-time and freelance,
workers under a temporary contract and under an unlimited time contract,
working on a permanent basis or seasonally.

Important! The limited financial liability of an employee is called limited for the reason that damage caused to the employer can be compensated only within the limits of one average monthly salary of the employee, calculated according to the rules from Article 139 of the Labor Code of the Russian Federation.

Typically, limited liability occurs in the following cases:

Case of limited liability	A comment
The employer did not receive the money due to him in full (usually he received more, but this time he received less).	The reason for this was the employee’s dishonest attitude towards his job responsibilities.
The employer was forced to suspend production or send workers home.	This was due to employee damage to equipment, creation of an emergency situation and other unlawful actions.
The employer incurred the costs of repairing damaged company property.	The property was damaged by an employee who will be held liable.
The employer could not fully carry out its activities due to the fact that the employee did not draw up the necessary documentation.	Or drafted the papers improperly.
The employer suffered actual direct damage due to the loss of critical documents.	We are talking about papers that cannot be quickly recovered.
The employer suffered losses because material assets transferred to the employee to perform his job functions were damaged.	The employee damaged property through negligence or inattention.
The employer had to pay a fine due to the employee’s guilty actions.	A fine may be paid for the employee’s unlawful actions or imposed on the employer due to the employee’s fault.

Conditions of occurrence and establishment

the fact and amount of damage that the employee did this has been documented;
there is not a single factor that excludes or casts doubt on guilt;
it has been proven that this was done intentionally (negligently or carelessly).

As a rule, an employee’s limited liability occurs if the employee unintentionally damages or destroys the property entrusted to him, loses financially significant documents or incorrectly prepares them, which “backfires” on the company, say, in the form of a supply failure.

There is, however, one caveat - lost benefits cannot be recovered from the employee , no matter what type of responsibility he bears. This is the difference between the requirements of the Labor Code and civil legislation.

Negligence refers to the option when a person knows what his actions can lead to, understands that they contradict the established rules, but hopes that “it will do.”

For example, a saleswoman at a haberdashery boutique ran to the toilet, leaving the boutique unlocked, thinking that since she was leaving for a short time, nothing could happen in such a short time. At this time, one of the dishonest visitors comes in and takes whatever he likes. Carelessness, on the other hand, consists of not understanding or misunderstanding what unlawful actions can lead to.

The procedure for bringing an employee to limited financial liability

In order to legally withhold money from an employee for losses caused to the company, the following conditions must be met:

The employer must make a written order.
The order must be drawn up no later than one month after the date on which the exact amount of damage caused to the company was determined.
Withholding from an employee should not be made in an amount exceeding one average monthly salary.

If the employee cannot pay off the debt immediately, he asks the employer to allow him to pay in installments. Then an obligation to compensate for the damage is drawn up, indicating the amount of the debt and the timing of its payment.

If the employee who wrote the obligation leaves work and stops paying money to the manager, the second has the right to file a claim in court. If a subordinate has repaid a debt, this does not relieve him of disciplinary liability. And if an offense is discovered in his actions, he may be held administratively or even criminally liable.

Article 248. Procedure for recovery of damages

Recovery from the guilty employee of the amount of damage caused, not exceeding the average monthly earnings, is carried out by order of the employer. The order can be made no later than one month from the date of final determination by the employer of the amount of damage caused by the employee.

If the month period has expired or the employee does not agree to voluntarily compensate for the damage caused to the employer, and the amount of damage caused to be recovered from the employee exceeds his average monthly earnings, then recovery can only be carried out by the court.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

If the employer fails to comply with the established procedure for collecting damages, the employee has the right to appeal the employer’s actions in court.

An employee who is guilty of causing damage to the employer may voluntarily compensate for it in whole or in part. By agreement of the parties to the employment contract, compensation for damage by installments is allowed. In this case, the employee submits to the employer a written obligation to compensate for damages, indicating specific payment terms. In the event of dismissal of an employee who gave a written commitment to voluntarily compensate for damage, but refused to compensate for the specified damage, the outstanding debt is collected in court.

With the consent of the employer, the employee may transfer equivalent property to compensate for the damage caused or repair the damaged property.

Compensation for damages is made regardless of whether the employee is brought to disciplinary, administrative or criminal liability for actions or inactions that caused damage to the employer.

Legislative acts on the topic (Labor Code of the Russian Federation)

Art. 241 Labor Code of the Russian Federation	On limited financial liability of employees
Art. 243 Labor Code of the Russian Federation	On the full financial liability of employees
Art. 248 Labor Code of the Russian Federation	Sequence of actions when bringing an employee to limited financial liability
part 3 art. 196 Code of Civil Procedure of the Russian Federation	Cases when a court can hold a company employee to full financial liability, despite the fact that the employer (plaintiff) declared to hold him to limited financial liability

What it is?

This is the employee’s obligation to compensate for direct actual damage caused to the company (Article 233 of the Labor Code). It is measured by average monthly earnings (Article 241 of the Labor Code), in contrast to full earnings - where they are required based on the amount of damage caused.

The employer, along with providing the employee with a workplace, proper working conditions and all the necessary consumables (as well as wages, of course), can demand a natural return - careful treatment of his property.

And if it is established that the employee caused him some damage, or that corporate property was damaged in one way or another, reclaim it from him in the proper amount.

True, this amount is not limited only by the will of the employer; the law provides for serious limits for it. If a businessman violates this rule, then the damages will not be recovered from the employee, but he himself may be held liable... So, the limited financial liability of the employee is within the limits of the Civil Code of the Russian Federation.

Limits of liability

As already mentioned, the amount of compensation withheld from the employee cannot exceed his average monthly income (Article 241 of the Labor Code). It is calculated on the basis of Art. 139 of the Labor Code and Decree of the Government of the Russian Federation No. 922 of December 24, 2007, which covers the criteria for calculating wages.

If full liability is not provided, and the amount of damage is more than the average monthly salary, then the average monthly earnings limit cannot be exceeded.

The rest is written off as business losses of the company.

Common mistakes

Error: The employer demands absolute compensation for losses from an employee who damaged company property during the production process.

Comment: If damage is caused during the performance of work duties, the employee bears limited financial liability (within the maximum possible deductions, but not more than the damage actually caused).

Error: An employer enters into a separate limited liability agreement with a newly hired employee.

Comment: If the employment relationship is formalized in accordance with the requirements of the law, no additional agreements are required - cases where the employee bears full financial responsibility are established by the List of the Ministry of Labor, and in other cases the law obliges the employee to be responsible for the employer’s losses arising through his fault.

Employer's procedure

determine the amount of damage caused;
How guilty is the employee and is he guilty at all?
a commission is created to establish the full picture of the damage;
the employer informs the employee about the results of the inspection and requests an explanation (the employee has the right not to give the latter);
an order to recover the amount of damage from the employee is issued and registered, the employee familiarizes himself with the order

The employer must demand an explanation from the employee who committed the offence. True, he may refuse to give them - this is his right, which cannot be violated.

There are no clear time limits for giving them explanations for their actions, but since any financial liability always arises as a result of at least a disciplinary violation, the period provided for by law in this case is usually set at two working days.

The employer can recover the amount intended for compensation on the basis of a specially issued order. This amount is withheld from the wages of the offender, but not at a time, but in parts, over several months, and each of the “tranches” should not exceed 20% of the monthly income (Article 138 of the Labor Code).

The obligation to pay for damage caused cannot in itself serve as a prohibition for terminating an employment contract . But dismissal, in turn, does not cancel this obligation.

The employer may also exercise its right not to recover damages from the employee (Article 22 of the Labor Code).

If you need more legislative information, regulations and orders are at your disposal, as well as our analysis of the laws on this topic. In addition you can find:

instructions for collection and reasons for this;
detailed description of inventory;
information about the appointment, change and dismissal of the person in charge;
as well as a log of contracts.

Example 1

Office manager Rumyantseva broke the copy machine, trying to “repair” it herself due to a problem that had arisen. She agreed with the claims presented to her, as a result of which the amount of 8 thousand rubles was collected from her to pay for the purchase of a new device.

Example 2

Due to the fault of Magras LLC locksmith Pyanov, the entire lower floor of the office building was flooded. The total amount of damage, taking into account wear and tear, amounted to 200,000 rubles. An agreement on full financial liability was not concluded with Pyanov.

The plumber admitted his guilt, agreeing to pay damages in the amount of his earnings (which amount to 30,000 rubles). Thus, the company will have to write off the remaining one hundred and seventy thousand as losses.

Answers to common questions

Question No. 1: Can minor employees bear full financial liability to the employer?

Answer: No, according to the law, only limited financial liability of the employee applies to minors. Even if adult employees bear full financial liability in similar cases, minors may incur only limited liability.

Question No. 2: When does full financial responsibility begin for an employee?

Answer: Only employees whose positions are included in a special List of the Ministry of Labor, approved by Resolution of the Ministry of Labor No. 85 dated December 31, 2002, bear full financial responsibility.
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Agreement

Labor relations between employer and employee arise from the moment they directly conclude an employment agreement.

The Labor Code of the Russian Federation states that an employment contract is a contract under which the employee undertakes to perform the labor functions assigned to him by a specific agreement, and the employer undertakes to pay timely wages and ensure compliance with proper working conditions.

It is worth noting that according to the new edition of the Russian Federation, defined by Federal Law No. 90 of June 30, 2006, both an organization and a person who is a private entrepreneur can be represented as an employer.

The employment relationship document must be in writing. An employee is hired on the basis of an order or a corresponding order from the management of the organization.

The actual time for admission to work begins from the moment the employment agreement is signed, even if the employee’s hiring was not properly formalized. All employees of the organization are subject to financial liability, although to varying degrees.

The fundamental legislative act that defines the employee’s responsibilities regarding compensation for losses caused to the employer is the Labor Code of the Russian Federation. Chapter 39 determines exactly what damage must be compensated, under what circumstances and in what order.

An agreement on full financial responsibility is concluded only with employees whose positions are included in the List ratified by Resolution of the Ministry of Labor No. 85 of December 31, 2002. All other employees not included in this List bear limited financial liability.

To fully formalize the relationship, nothing other than a standard package of documents is required when applying for a job.

That is, there is no special agreement on limited liability. This obligation is considered accepted by default when registering an employment relationship with any employee.

It should be noted that limited material damage cannot be recovered from the employee if it arose due to force majeure circumstances or if the employer is at fault for not providing the proper conditions for preserving his property.

That is, an employee can be found guilty only if he committed intentional or careless actions that resulted in a loss.

It is important that the employer has the right, on the basis of Article 240 of the Labor Code, to resolve the situation of bringing an employee to financial liability at his own discretion - to partially recover the due amount from the culprit, to demand full compensation, or to refuse compensation altogether.

Find out the specifics of the warehousekeeper's financial liability agreement in the article: warehouseman's financial liability agreement.

You can sample a driver's liability agreement for a car.

About full individual financial responsibility.

The duty of each employee is to be responsible for the property of the employer. Such property may be entrusted to the employee or be in his use. Regardless of the grounds, personnel liability is established for damage or destruction of the employer’s property.

Compensation amount

The employee bears limited financial liability within the limits strictly defined by the Labor Code of the Russian Federation. Therefore, it is necessary to immediately determine according to the norms of Art. 139 of the Labor Code of the Russian Federation is the average monthly earnings that constitute this limit. Salary is calculated from the date of damage for the last 12 calendar months of work.

If an employer wants to recover more than the amount of average earnings, he has the right to go to court. If the parties have reached an understanding, compensation for damage is possible with the provision of installments, but it is necessary to sign an agreement defining the terms for making payments. It is important to arrange everything so that the rights of both parties are respected.

Any employee, both an ordinary employee and a manager, can bear financial liability for damage caused to an employer (organization, enterprise, institution and individual entrepreneur). The fundamental legislative act defining the employee’s obligation to compensate for damage caused to the employer is the Labor Code of the Russian Federation, which in Chapter. 39 “Financial liability of the employee” establishes what kind of damage is subject to compensation and under what conditions the employee is obliged to compensate for this damage. In addition, the Labor Code of the Russian Federation defines the limits and procedure for collecting damages, provides guarantees when imposing financial liability on an employee, as well as the employer’s right to refuse to collect damages. Knowledge of the provisions of the Labor Code of the Russian Federation will allow heads of organizations and individual entrepreneurs to correctly determine cases of application of one or another type of financial liability, its limits, as well as the guilt of the specific employee (workers) on whom it is assigned.

According to Part 1 of Art. 238 of the Labor Code of the Russian Federation, the employee is obliged to compensate for direct actual damage that he caused to the employer.

Financial liability for damage caused to the employer is assigned to the employee only if the damage was caused by his

guilt. Only those employees with whom a written agreement has been concluded will receive full compensation for damages. Responsibility for damage caused is not removed from the employee even after the termination of the employment relationship, if the damage was caused during the validity of the employment contract. Financial liability implies the withholding of funds from the employee to compensate for the material damage caused by him in the manner and amount established by the Labor Code of the Russian Federation. When determining the amount of damage, only direct actual damage is taken into account and lost income that the employer could have received, but did not receive as a result of the employee’s unlawful actions, is not taken into account, i.e. lost profit. Direct actual damage is understood as a real reduction (deterioration) of the employer’s available property (including property of third parties located by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs for the restoration or acquisition of property.

The amount of damage is calculated based on market prices prevailing in the area on the day the damage occurred. But it cannot be lower than the residual value of the lost or damaged property according to accounting data. When determining damage, actual losses within the established norms of natural loss are not taken into account.

Material damage is not recovered from the employee if it arose as a result of force majeure - an emergency and unpreventable event, the elimination of a danger threatening the person, as a result of necessary defense. Financial liability also does not arise if the employer himself fails to fulfill his obligations to ensure proper conditions for storing property entrusted to the employee (Article 239 of the Labor Code of the Russian Federation). Thus, labor legislation directly provides that an employee may be considered guilty of causing damage if his actions were committed intentionally or through negligence, i.e. illegal. Particular attention should be paid to the provisions of Art. 240 of the Labor Code of the Russian Federation, which provides for the right of the employer, at its own discretion, to decide the issue of holding an employee financially liable: to recover from him the cost of damage or to completely or partially refuse to recover from the guilty employee the damage caused by him. If the employer decides to recover damages caused by him from the employee, then compensation is made in the amount of two types of liability provided for by labor legislation - limited and full (Articles 241, 242 of the Labor Code of the Russian Federation).

With limited liability

damage is compensated in an amount not exceeding the employee’s average monthly earnings.
That is, the smaller of the two amounts is chosen: if the damage is less than the salary, it will be compensated in full. If the salary is less than the damage, an amount equal to the salary is recovered, i.e. Some of the damage will not be reimbursed. And this is a general rule. Full financial liability is an exception and is possible only for those employees who directly service or use
cash, commodity values or other property.
With full financial liability,
damage is compensated without any restrictions, but this type of liability can
only
in cases provided for in Art. 243 Labor Code of the Russian Federation:

1) when, in accordance with the Labor Code of the Russian Federation or other federal laws, the employee is financially responsible in full for damage caused to the employer during the performance of the employee’s job duties;

2) shortage of valuables entrusted to the employee on the basis of a special written agreement or received by him under a one-time document;

3) intentional infliction of damage;

4) causing damage while under the influence of alcohol, drugs or toxic substances;

5) damage caused as a result of the employee’s criminal actions established by a court verdict;

6) damage caused as a result of an administrative violation, if established by the relevant government body;

7) disclosure of information constituting a secret protected by law (official, commercial or other), in cases provided for by federal laws;

causing damage not while the employee was performing his job duties.

Persons under 18 years of age may bear full financial liability only for intentionally causing damage while under the influence of alcohol, drugs or toxic substances, as well as for damage caused as a result of a crime or administrative offense (for example, in the case of criminal prosecution for theft).

When hiring employees for certain positions or work related to the servicing of monetary and commodity assets, heads of organizations (individual entrepreneurs) must conclude agreements with them on full individual or collective (team) financial responsibility (Part 1 of Article 244 of the Labor Code of the Russian Federation). If financial liability is established by federal law, then in this case it is not necessary to conclude an agreement on full financial liability.

Resolution of the Ministry of Labor and Social Development of the Russian Federation dated December 31, 2002 No. 85 approved the Lists of positions and work filled or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility (hereinafter referred to as the Lists), as well as Standard forms of agreements on full liability1. Employers should be guided by the Lists when concluding agreements on full financial responsibility, both individual and collective. Collective (team) full financial liability for causing damage to the employer is provided for in Art. 245 Labor Code of the Russian Federation. Agreements can be concluded in organizations of any legal form and form of ownership. Agreements on full financial liability can be concluded with employees specified in the Lists, subject to the following conditions:

– the employee reaches 18 years of age;

– direct transfer of monetary, commodity valuables or other property for storage, processing, sale (release), transportation or use in the production process, i.e. for maintenance or use.

The lists of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility for shortages of entrusted property are not subject to broad interpretation. When combining professions (positions), an agreement can be concluded with the employee if the main or combined profession (position) is provided for in the Lists. An agreement on full financial liability concluded with an employee whose position (job) is not in the Lists has no legal force.

An employee who has entered into an agreement on full financial liability with a private entrepreneur bears full responsibility for ensuring the safety of those valuables that he personally received according to an invoice or other accounting document, despite the fact that in some cases other persons have access to these values (for example , auxiliary workers).

An agreement on full financial liability is concluded with an employee on the basis of an employment contract and an order in a standard form2, approved by Decree of the Ministry of Labor and Social Development of the Russian Federation of December 31, 2002 No. 85. It specifies the responsibilities of the employee and the employer to ensure the safety of valuables. Failure by the employer to fulfill obligations to provide adequate conditions for storing property entrusted to the employee is the basis for releasing the employee from financial liability, and in appropriate cases, for imposing the obligation to compensate for damage on the guilty manager, his deputy or chief accountant.

The agreement between the manager and the employee is drawn up and signed by the parties in two copies, one of which is kept by the administration, the second by the employee. A prerequisite for the validity of the contract is the date of its conclusion, since from that moment the contract comes into force, and the employee becomes responsible for the failure to preserve the valuables entrusted to him. The employee is not responsible for any shortages that occur before the transfer of valuables. If there is no date for concluding the contract, the latter is considered invalid.

The validity of the concluded agreement on full financial liability extends to the entire time of work with the material assets entrusted to the employee. A financially responsible employee, in accordance with the contract, must promptly report all circumstances that threaten the safety of the property entrusted to him, keep records, draw up and submit to the accounting department commodity-monetary and other reports on the balances and movement of the property entrusted to him (commodity reports). At enterprises where commodity reports are not maintained, transactions of the movement of valuables are recorded in the accounting registers according to primary documents submitted by financially responsible persons.

The financially responsible person must participate in the inventory of the valuables entrusted to him, and the administration of the employer company is obliged to create conditions for the employee to work normally and ensure the complete safety of the valuables entrusted to him, to acquaint him with the current legislation on financial liability, as well as other regulations on the procedure for storage, reception , processing, sale, release, transportation and other transactions with valuables.

The employee does not bear financial liability if damage from shortage or damage to valuables was not his fault. This condition must be specified in the contract. In addition, this agreement provides for full financial liability only for shortages and damage to valuables. In all other cases, damage is compensated in accordance with the provisions of the Labor Code of the Russian Federation on limited liability.

When hired, the employee undertakes to preserve property

, entrusted to him by the employer and third parties. Financial liability will arise if things are damaged or lost.

The employer will calculate the amount of the loss and then claim the amount from the employee

. The limited financial liability of the employee must be previously agreed upon when applying for a job. Direct actual damage is recovered, i.e. one that can be calculated.

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