How to sue an employer for non-payment of wages?

Author of the article: Anastasia Ivanova Last modified: January 2020 2922

If employees are faced with delays in wages, they often do not know where to begin in order to achieve repayment of the debt. Such individuals may simultaneously take steps in several directions at once. First of all, a claim is made to the employer for non-payment of wages. Its presentation allows, sometimes, to resolve the issue without involving many third-party structures.

Rights of employees

Art. 21 of the Labor Code of the Russian Federation secures the right of every employee to receive wages in full and strictly within the time period established by law. Art. 136 of the Labor Code of the Russian Federation determines that the payment period is established on the basis of individual and collective agreements, but with mandatory compliance with the following conditions:

• Salaries should be paid at least twice a month. An increase in the number of payments is acceptable, a decrease is not.
• Salaries must be provided no later than 15 days after the end of the period for which they were accrued (for example, payments for December cannot be later than January 15).
• If the payment date coincides with a weekend or holiday, the amount of money must be provided to the employee in advance.
• Upon dismissal, the entire salary is given to the employee on the last working day along with the work book.

Expert commentary

Gorchakov Vladimir

Lawyer

Possible consequences for the employer and the rights of employees in case of delayed wages are set out in Art. 142 Labor Code of the Russian Federation. So, if an employee’s payment is delayed by more than 15 calendar days, he has the right to suspend work until the debt is fully repaid. During the entire period of absence in this case, his salary is retained.

Art. 236 of the Labor Code of the Russian Federation determines that in the event of a delay in payments, the employer is obliged not only to repay the debt to its employees, but also to pay a penalty. The amount of compensation must be no less than 1/150 of the Central Bank key rate at the time the debt exists for each day of delay.

Art. 237 of the Labor Code of the Russian Federation establishes that, in addition, due to a delay in wages, a sum of money may be recovered from the employer as compensation for moral damage suffered by the employee. If this condition is specified in the employment contract, recovery is carried out on its basis. In all other cases, the amount is recovered on the basis of a court decision after the employee submits a statement of claim to the court.

Statement of claim for recovery of wages and monetary compensation for delayed payments (sample)

How are writ proceedings for non-payment of wages carried out?

A court order is an act issued personally by a judge on the basis of a written request for repayment of a debt or recovery of property from the debtor according to the requirements listed in Art. 122 of the Code of Civil Procedure of the Russian Federation, provided that the amount of debt does not exceed 500,000 rubles. Main features of its application:

• The order acts as an executive document along with other court decisions;
• It is adopted without the participation of the parties to the conflict and without holding a public hearing;
• Its use presupposes the undisputed fulfillment of the requirements specified in it;
• The use of a court order is permissible only if there are no additional demands and there is a dispute about the amount of the debt.

If the requirements regarding the maximum amount and the absence of additional disputes are not met, then the case should be resolved only by way of claim proceedings without using the order mechanism.

Before going to court, it is better to prepare documents confirming the stated claim. These include:

• Employment contract;
• Extracts from time sheets;
• Copies of piecework outfits;
• Extracts from the company’s local regulations regulating the procedure for calculating incentive payments and additional payments;
• Pay slips for previous and current periods;
• A copy of the notice of suspension of work on the 15th day of delay in payments (if made);
• A copy of the request to the employer to repay the debt.

The specified documents are attached to the application for the issuance of an order by the magistrate. The writ procedure includes the following steps:

• Filing an application for an order – ;
• Within 5 days, the judge is obliged to consider it and make a single decision on approval or refusal;
• The court order is sent to the employer within 3 days from the date of its publication;
• The debtor may appeal it within 10 days from the date of receipt;
• If the order is not contested within the allotted time, a copy of it is issued to the applicant, or, at his request, directly to the bailiffs for execution.

A court order sent by mail is considered received from the moment the signature on its delivery is affixed to the notice. If the order has not been served, then the ten-day period begins to be calculated from the last day of the period allotted for its storage at the post office.

If an employment contract has not been signed

Unfortunately, there are more and more people in Russia who work without concluding an employment contract. This is often taken advantage of by unscrupulous employers who do not pay wages, believing that an employee without a contract will not be able to prove the fact of an employment relationship.

However, Art. 67 of the Labor Code of the Russian Federation establishes that an oral employment contract can be considered concluded if the employee fulfills labor obligations with the permission of the employer or his authorized persons. If the employer allows an employee to work, he is obliged to formalize the employment relationship with him in writing. In a situation with non-payment of wages, such an employee should, first of all, file a claim in court to recognize the relationship as an employment relationship. Any documents confirming the fulfillment of labor duties, as well as witness testimony, can be considered as evidence.

Statement of claim to establish the fact of labor relations (sample)

Important! Judicial practice shows that even without an employment contract drawn up in compliance with all requirements, it is possible to obtain payment of wages.

Guarantees of labor legislation

By not paying an employee the money he earns, the employer violates the Labor Code. Article 21 of the Labor Code, listing the rights and obligations of Russian workers, clearly defines: employees have the right to receive the salary on time and in full, which he agreed on with the company (or individual entrepreneur) in the employment contract.

Unpaid wages, according to Article 142 of the Labor Code, within a 15-day period, is grounds for suspension of work. Before the employee is notified in writing of the employer’s readiness to pay him, he is not even required to be present in the office or enterprise. And all this time he will receive average earnings. Having received this notification, he will have to begin performing his work duties the very next day. Otherwise, there will be a threat of being fired for absenteeism.

Article 236 of the Labor Code says that in case of delay in money earned by a subordinate, management is obliged to return it along with compensation, which is calculated as follows: amount of debt x refinancing rate/100/150 x number of days of delay.

Article 237 of the Labor Code allows an employee to recover moral damages from an employer who has delayed payment of wages.

When to file a claim with your employer

Russian legislation provides for mandatory compliance with the pre-trial stage of settlement of the issue for a number of civil disputes. It consists of filing a claim from the injured party against the guilty party. However, labor disputes are not included in this list.

In case of non-payment of wages, the employee can immediately contact:

• To the court by filing a statement of claim.
• To the Prosecutor's Office.
• To the department of the Ministry of Internal Affairs with a statement.
• To the local labor inspectorate.
• To the commission on labor disputes at the enterprise.

If desired, an employee whose salary has been delayed has the right to file complaints immediately with all regulatory authorities, plus the court. But as practice shows, at least 30% of all labor disputes can be resolved through pre-trial settlement, by filing a claim with the employer.

Expert commentary

Gorbunova Olga

Lawyer

The psychological factor is important here. Many employees, when their salaries are delayed, prefer to simply wait for the debt to be repaid, without trying to involve a third party in resolving the issue. This is what employers take advantage of. But when they see the employee’s serious attitude, they prefer to resolve the problem without involving regulatory and judicial authorities, because otherwise administrative penalties may be imposed on them.

Therefore, if wages are delayed, a claim can be filed from the first day, although it is advisable to wait two weeks, since no one, including the employer, is insured against force majeure circumstances.

What to write in a statement to the prosecutor's office about non-payment of wages

The request is drawn up on an A4 sheet in a custom style. The form must include all the information necessary to objectively assess the situation and take action against the employer. Despite the fact that there is no unified form for drawing up a complaint to the prosecutor's office, when drawing up a request, it is still necessary to follow the rules of execution related to business papers.

Introductory part

All requests and complaints sent to the prosecutor's office are most often addressed to the prosecutor at the head of the local office. At the same time, you need to display his position, unit name, rank and full name. (for example, “To the Prosecutor of Tomsk, State Counselor of Justice 3rd class I.I. Petrov ...”).

Here you also need to write down information about the author of the request: full name, residence address and telephone number.

Note : The request must be sent to the prosecutor at the location of the company where the author of the petition works, or to a higher authority (for example, for the Tomsk prosecutor's office, the prosecutor's office of the Tomsk region is considered a higher structure).

Descriptive part

This block displays all the information explaining the essence of the complaint:

1. The applicant's full name is filled in, indicating the date when he started working for the company.
2. Full name of the company with its registered address.
3. Applicant's position.
4. The time during which wages were not paid, starting from the initial moment of the delay and as of the time the complaint was sent.
5. A certificate confirming an appeal to the head of the company for an explanation of the reason for the delay in payment and his decision.
6. The total amount of non-payment of money with a mark of monthly income.
7. Date of termination of employment (if this was done).

The operative part

Here you need to lay out the requirements of the employee who submitted the request to the prosecutor:

1. Invite your boss to correct the violation.
2. Send the inspection materials to the State Tax Inspectorate for administrative punishment under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.
3. Initiate criminal proceedings against the director of the institution under Article 145.1 of the Criminal Code of the Russian Federation.
4. Submit a claim to the court.

Note : A request to the prosecutor to delay payment of wages can be sent either individually or from the company’s team - there are no restrictions in such options.

How to make a claim

No legal act regulates the form of a claim addressed to the employer. Therefore, it is compiled arbitrarily in accordance with the general rules of office work. When writing, you should focus on existing examples of similar documents.

It is advisable that the text of the claim include the following information:

• Basic data of the sender (full name, position held in production, name of department, etc.).
• Basic data of the addressee. This may be the general director or other head of the enterprise. It is necessary to indicate his full name and position.
• Title of the document. For example: a claim for delayed wages.
• Statement of the main essence of the problem. Here you should indicate what date the employer had to pay the salary, the number of days of delay, the amount of debt and provide links to the current labor legislation. It is necessary to list not only what rights the employer violates, but also to outline the consequences of these violations for the employee. For example, the inability to pay for the purchase of medicines, the deterioration of a child’s condition due to a poor diet, lack of funds for a vacation trip, etc.
• Notification of your further actions in case of non-payment of debt in the coming days. It is advisable not to indicate a period of more than three weeks. It is also permissible to set a certain deadline for providing a response to the claim. In this case, it is necessary to indicate not only the time period, but also the way in which the employer will be able to provide it.
• List of attached documents. The claim can be accompanied by a copy of the employment contract, receipts for lawyer’s fees, doctors’ reports with prescriptions and recommendations for treatment, etc.
• Date of document creation.
• Signature of the submitter with transcript.

An employee's complaint to the employer for non-payment of wages (sample) Complaint to the employer for non-payment of wages (sample)

If desired, the author can include in the text of the document a condition on the payment of a certain amount to him as compensation for moral damage and/or funds to pay for the services of a lawyer, if the submitter applied for advice and kept the receipt for payment.

If the delay in payments affected several people or all employees of the enterprise, the claim may be collective.

Sample complaint to employer for non-payment of wages

Often, citizens whose work is not related to regular processing of documentation have difficulties writing such documents. At the same time, even a person who regularly fills out various forms may encounter difficulties when writing the wording of a claim for unpaid wages. To simplify the task of writing an appeal to the employer in such circumstances, it is better to use a ready-made sample , simply filling in the missing fields.

Methods for filing a claim

Before sending any complaints to the employer, you should study the personal and collective employment agreement. Perhaps the text of the documents indicates a certain procedure for filing claims. In this case, you should stick to it. For example, some organizations allow complaints to be submitted via email.

If there is no such condition in the contract, a claim can be submitted to the employer in the following ways:

• Hand over personally to the office or to the manager himself. In this case, you should prepare a second copy of the claim in advance and request that you put on it the registration number of incoming correspondence and the signature of the responsible person who will accept the document.
• Send by registered mail with acknowledgment of delivery and a list of the contents to the address of the actual location of the organization.

How to make a calculation

It is advisable to consider an example of compensation calculation, which should be attached to the pre-trial claim or placed in its text.

Salary at LLC "White Sail" is issued:

• 25th of the current month;
• 10th day - the day following the day on which the salary was accrued.

Designer Kuznetsov V.A. works 5 days a week. He received his salary for June 2017 on August 31. June earnings amounted (minus income tax) to 80,000 rubles. For the 1st and 2nd half of June, 40,000 rubles are payable.

June 25 is a non-working day, the day of payment of the first 40,000 rubles. – June 23. Delay from June 24, 2020 to August 31, 2020 – 69 days.

40,000 x 9% x 1/150 x 69 days. = 1656 rub.

Day of payment of the second 40,000 rubles. – July 10, 2020. Delay from June 11, 2020 to August 31, 2020 – 52 days.

40000.00 rub. x 9% x 1/150 x 52 days. = 1248 rub.

The total amount of compensation to Kuznetsov V.A. will be 1656 + 1248 = 2904 rubles.

When the employer does not agree to satisfy the demands of a subordinate, expressed orally, you need to contact him, setting out the claims on paper.

Take note! Before drafting a document, it is worth talking with colleagues. They may also have suffered from non-payment and are ready to defend their rights. Then a collective claim is drawn up, which can be more effective.

What to do if no answer is provided

Legal provisions do not indicate within what time the employer is obliged to respond to the claim. Therefore, any period determined to be reasonable should be established. As a rule, claims include a period of two weeks.

Expert commentary

Leonov Victor

Lawyer

Although it is possible to file a complaint with regulatory authorities bypassing the claims stage, it will be considered more quickly if a complaint has been submitted to the employer. If there is no response from the employer within the prescribed period, employees need to contact the Labor Safety Inspectorate and the Prosecutor's Office. Employees of these structures are given a period of no more than a month to consider the issue and formulate a response to the complaint.

To do this, a commission is sent to the enterprise and gets acquainted with the documents on site. If violations of the law are detected by the employer, the Labor Inspectorate issues an order to eliminate them. In addition, in case of serious violations of labor legislation, the prosecutor's office may initiate a lawsuit.

It is worth going to court with a statement of claim on your own after the claim stage and inspections by regulatory authorities, if they did not lead to the repayment of the debt, or the required amount has not been paid in full. For example, an employer may pay off a debt and refuse to pay penalties and compensate for moral damages. In this case, the claim is filed in the city (district) court at the location of the enterprise.

How are claims for recovery of wages carried out?

Claim proceedings take a longer period of time, however, if its implementation is necessary in connection with legal requirements, the employee has no choice but to resort to it. This category of cases is heard in the district court at the choice of the employee: at his place of residence, at the address of the employer, at the place of actual performance of work. Algorithm for considering claims for debt collection:

• Write a statement demanding repayment of wage debt -. It must contain: Identification data of the court, applicant and defendant;
• Description of violations committed by the employer, a detailed description of the circumstances of their commission;
• List of requirements for the employer: pay the debt, penalties, compensation for moral damage.
• List of written evidence attached to the claim.

State duty in cases of wage recovery is not paid.

After this, the decision comes into force and must be compulsorily executed. The ten-day period in case of a decision in absentia is calculated from the moment the defendant receives the claim.

Another month is allotted for appealing decisions in civil cases; during this period, the employer can challenge it in a higher authority. Thus, the entire procedure, if the outcome is favorable, will take the employee no more than 3 months.

If an employer owes more than one employee , they can file a class action lawsuit to recover wages from the employer. However, each of its participants defends their personal rights, so they should be entered as a plaintiff on a separate line.

Algorithm of actions in case of salary delay

Many employees prefer to do nothing and not file complaints or claims regarding the employer's violation of their rights. On the one hand, this can be justified by the fear of losing a job, but on the other hand, such inaction only harms ourselves . Who wants to be left without a salary or beg for it from management for months.

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What to do if the employer has delayed payments? The law allows him to issue wages within two weeks from the date of payment. But if this period is exceeded, employees already have the right to file a complaint. However, you should not rush into such a decision. First, you should contact the employer himself.

Pre-trial letter to the organization

One of the rules for filing a lawsuit is that the plaintiff must try to resolve the issue amicably before filing a claim. The same applies to employees whose salaries were delayed. A claim to an employer for non-payment of wages is a pre-trial method of resolving a dispute. How to submit it?

The claim can be made by hand or printed in duplicate. One version of the document should be handed over to management, and the second should be kept for yourself. In this case, the manager is obliged to mark the acceptance of his employee’s appeal. The employer has ten days to study the complaint and take measures to pay wages.

If the boss refuses to accept the claim, the document can be sent by registered mail. In this case, the employer will not be able to ignore the appeal.

The main goal of a pre-trial complaint to an employer is a peaceful resolution of a dispute about unpaid wages . However, if the employee suffered losses due to lack of payment, for example, he was late on a loan or other obligatory payments, then the claim will not help. In order to receive compensation for expenses incurred in addition to the debt, you must contact other regulatory authorities.

Sample

A claim is a statement, the structure of which includes a header, title and body of the document. The first thing you need to fill out in the complaint is information about the recipient and sender of the appeal. Indicate in the header of the document the details of the employer and the head of the enterprise, as well as your personal data: Full name. and contact details.

If the complaint is filed by an employed employee in one of the branches of the enterprise, then the application must indicate the place of activity (number and address of the branch, store, office).

The body of the complaint to the employer for non-payment of wages must provide the following information :

1. Information about the employee (date of employment, contract details).
2. Reason for application, terms and amount of unpaid salary.
3. The moment when the salary was last received.
4. Description of the laws that were violated by the employer.

At the end of the complaint, it is imperative to indicate the requirements . For example, about the payment of wages within a certain period. It would not be superfluous to indicate the consequences that arose for the applicant due to the delay in payments: late loan or payment of utility bills, lack of funds to live, to provide for loved ones.

The document is available for download

It is also worth pointing out that if the complaint is ignored, a claim against the employer will be filed with other authorities. And when checking them, the head of the enterprise faces another responsibility, as well as the prospect of paying additional expenses, compensation and fines.

How to write

The claim addressed to the employer does not have a strictly established form and is drawn up in a free format. The claim may be written by hand or typed on a computer.

A claim is made individually by an employee or on behalf of the work collective whose rights to timely payment have been violated. The claim must contain the following aspects:

1. Name and details of the employing company , its legal address.
2. Full name of the manager and his position.
3. The position and full name of the employee who is filing the claim (if necessary, also his structural unit).
4. Name of the document “Claim”.
5. A statement of circumstances with references to legislative norms and articles of labor law that the employer violated , as well as local regulations (for example, details of the employment contract and the clause in it indicating the amount of the salary and the timing of its payment, etc.). This indicates the planned date of receipt of wages, its amount and the duration of the delay.
6. Requirements that are presented to the employer : pay wages. For example, immediately pay wages, compensation for late obligations, etc. You need to understand that material damage can only be recovered in court.
7. Deadlines for responding to a complaint and the preferred method of transmitting a response (for example, send a response by registered mail to the registration address). The legislation does not indicate within what time the employer is obliged to respond to the claim. But, according to established practice, this should be a reasonable period of 10-15 days, then the employee can complain about the employer to the labor inspectorate.
8. Date and signature of the applicant with transcript.

The claim is drawn up in an official business style. It should not contain inaccuracies or blots.

The complaint should also indicate that if the employer does not satisfy it voluntarily, the employee plans to file a complaint with the labor inspectorate, prosecutor's office or court. It is worth noting that, according to current legislation, an employee is not required to undergo a pre-trial dispute resolution procedure and can immediately go to court against the employer. But the fact that the employee tried to resolve the problem peacefully without involving the court will be to his benefit.

In a claim addressed to the employer, the employee should refer to the provisions of Art. 22 of the Labor Code, which states that the employer is obliged to pay wages in full and on time.

The employee can also refer the employer to the provisions of Art. 142 of the Labor Code, which states that an employer who fails to pay wages is liable to employees. So, according to Art. 236 of the Labor Code, the employer must not only pay the debt to the employees, but also pay them compensation for the delay, which is determined as a percentage of the Central Bank refinancing rate according to the Labor Code or the collective agreement.

An attachment to the document may include a sheet calculating the amount of debt and justification of the requirements.

A sample complaint to an employer for non-payment of wages can be downloaded here.

Not only working employees, but also dismissed employees can present their demands for debt repayment in a claim.

Failure to pay upon dismissal

If salary delays are no longer a frequent occurrence, then the employer’s refusal to pay upon dismissal is still quite common. A resentful employer may not pay part of the settlement to a former employee or completely deprive him of his bonus. But such actions are illegal.

As with a complaint about delayed wages, a former employee can file a claim with the employer for non-payment of wages after dismissal: the appeal is written in the same form, indicating the amount of debt. If the complaint is ignored, you should go to court.

Remember that if the employee was not officially employed, then it will be difficult to demand payment of arrears of wages after dismissal. However, this is possible if you prove the fact of fulfilling your job duties and receiving remuneration for it.

Both for delayed payments and for unpaid wages after dismissal, an employee has the right to ask for compensation and a penalty. After an employer has ignored a claim submitted to him, he must immediately file a claim in court. This must be done within one month from the date of dismissal.

If you are interested in filing an application to the court for non-payment of wages after dismissal, we recommend that you read this article.