Deduction of overpaid remuneration for work from the current salary
One of the basic obligations of the employer is the timely payment of correctly calculated remuneration. If the employee is paid a salary in an amount higher than the due amount, the simplest solution would be to automatically reduce the next payment by the overpayment made, i.e. making a deduction. The labor law allows the employer to make unilateral deductions from the employee's remuneration only in the case of certain receivables, which include bailiff seizures, cash advances granted to the employee and financial penalties. The employer is not always entitled to a reduction in remuneration due to payment of excessive amounts due, if the employee does not agree to it. If the deduction of overpaid wages is made in situations other than those enumerated in the provisions of the labor law, the employee is at risk of submitting a claim for payment of the wages withheld unlawfully.
Deduction of overpaid remuneration is not the fault of the employer
If the employee received remuneration for a period for which he was not entitled to it, and the above situation did not depend on the employer, the overpayment may be returned as soon as the salary is paid. The full amount of the payments made in the previous term for the period of absence from work for which the employee does not retain the right to remuneration is deducted from the remuneration for work. The consent of the subordinate is not required for this. Most often, such a situation occurs when the employee's absence occurs after the salary has been paid for a given month, e.g. due to illness or unpaid leave.
The legal provisions therefore allow for the deduction of overpaid remuneration without the consent of the person concerned under two conditions:
in the immediately following period (in practice, in the next month),
when an employee is overpaid due to the timing of payments and not due to an employer's error.
The possibility of deducting from the remuneration amounts paid in the previous payment term for the period of absence from work for which the employee does not retain the right to remuneration, is subject to compliance with the deadline. This deduction should be made from your next salary, paid on the next payment date. Recovery of the overpayment after this date is possible only after obtaining the written consent of the employee. Deductions of overpaid wages may be made before any other deductions, including those compulsory.
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The deduction of overpaid remuneration is not the fault of the employee
If there was an overpayment of remuneration through no fault of the employee, then the receivables that are not mentioned in Art. 87 § 1 and 7, may be deducted from the employee's salary only with his consent expressed in writing. As with any optional deductions, the employee must submit them in writing, indicating the specific amount of the claim.
The employer may not deduct the overpaid remuneration through his own fault without the consent of the employee.
The deduction of overpaid remuneration may not be made in any amount - despite the employee's consent to the deduction, it is necessary to apply an amount free of deductions, which, in accordance with Art. 91 § 2 of the Labor Code is:
100% of the minimum remuneration for work, determined on the basis of separate regulations - when deducting amounts due to the employer,
80% of the minimum remuneration for work, determined on the basis of separate regulations - when deducting other charges.
Due to the fact that in such a case the deduction is made for the benefit of the employer, the amount free of deductions will correspond to the minimum wage after deduction of social security contributions and personal income tax advance.
If the employee fails to return the surplus voluntarily, the boss only has the option of claiming the debt back in court proceedings on the basis of the provisions on unjust enrichment. These provisions indicate that whoever obtained the benefit without legal basis (undue) should return it. However, the obligation to return the benefit expires if the person who obtained it, consumed it or lost it in such a way that it is no longer enriched.