Sun left child benefits to working parents

Business disputes about social payments to employees in the decree reached the Supreme Court of the Russian Federation (SC). This is a child care allowance for a working parent. The Social Insurance Fund (FSS) and arbitration courts decided that payments are not due to an employee who worked part-time before and during maternity leave, that is, she did not lose income. But the Supreme Court satisfied the employer’s complaint, acknowledging that the deprivation of benefits “distorts the essence of state support for the family.” Lawyers hope that the decision will reduce the number of disputes. But conflicts can be completely avoided only by eliminating the gap in the law.

The SC defended the right of workers to receive childcare benefits. An acute social issue was raised in a dispute between IP Pavel Savelkin and the FSS (since 2023, its functions have been performed by the Social Fund of the Russian Federation). From the beginning of February 2021, the IP hired Natalya Romanova part-time (5 thousand rubles for a four-hour working day), who went on maternity leave on February 26. The Orenburg regional branch of the Social Insurance Fund paid her a child care allowance in the amount of 8 thousand rubles for March. But following the results of the audit, the FSS demanded a return of the money, deciding that the individual entrepreneur had abused the right and the social payment was not due.

The entrepreneur challenged the order of the FSS, and the Arbitration Court of the Orenburg Region declared it invalid. The court noted that Ms. Romanova is a mother of three children, she worked for an individual entrepreneur on a part-time schedule, and all conditions for maintaining the right to benefits are met. The fact that the employee was immediately hired on a part-time basis “has no legal significance” because such a schedule allowed her “to combine work and care for a child under one and a half years old,” the decision says.

But the appeal and cassation sided with the fund, obliging them to return 8 thousand rubles. to the budget. The courts considered that since the woman’s salary did not change after going on maternity leave, the allowance “acquires the character of additional material incentives for the employee.” The individual entrepreneur appealed these decisions to the Supreme Court, insisting that the law was observed, and the abolition of state support for the employee reduces the level of her financial support. The case was referred to the economic board, which supported the IP.

The SC noted that the allowance is issued in connection with the “risk of losing earnings or other income” while caring for a child up to one and a half years. At the same time, the law retains the right to benefits if the person on maternity leave works part-time and continues to care for the child.

That is, in this situation, the social payment compensates for part of the earnings that “the employee could receive under the condition of full employment,” the board noted.

The Armed Forces Fund considered the arguments unreasonable, since neither the Labor Code (LC) nor the law “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” (255-FZ) require that a person before the decree ” worked full-time for the same employer” or worked at all.

Considering that Natalia Romanova’s salary for a part-time job is less than the allowance, the deprivation of social benefits, the board emphasized, “reduces the level of her material security to employment, which distorts the very essence of state support for the family, motherhood, fatherhood and childhood.” As a result, the Supreme Court upheld the decision of the first instance.

Kazakov & Partners lawyer Yulia Krutova says that the position of the Supreme Court “is a precedent and will help reduce the number of business disputes with the fund.” The problem is, notes Nikita Filippov, head of the De Jure Law Office, that the Labor Code “does not have a clear concept of part-time work” and instructions on how much work should be reduced in order to maintain the right to benefits. It is only important that the person has “sufficient time to care for the child”, and the length of the working day is usually set “by agreement with the employer”.

The FSS considers “a slight reduction in working hours” to be an abuse of the right, believing that this “does not allow proper child care,” said Alexandra Akimova, head of the labor dispute practice at Lemchik, Krupsky and Partners. But the departments of the fund in the regions take different positions: for example, in Udmurtia in 2017 they limited the working day in the decree to five hours.

Employers themselves sometimes abuse the gap in regulation, for example, suing for the right to receive benefits when reducing working hours by a few minutes.

But the courts rarely support such a position – a famous case was in 2013, when the Supreme Arbitration Court retained the allowance for an employee of the municipal institution “Housing and Communal Agency”, whose working day was reduced by only 12 minutes (an hour per week).

Since the allowance is 40% of average earnings, arbitration courts often proceed from the fact that the reduced day should be 60% of the full one, and if a person on maternity leave works longer, he may be deprived of payments, Ms. Krutova notes. The Constitutional Court clarified in 2017 that a 30-minute workday reduction is too little, but two hours is enough to qualify for benefits.

The best solution, according to lawyers, would be to clarify the law. Vladimir Putin at SPIEF 2023 called for expanding the rights of working parents to benefits, emphasizing that “work should be profitable.” The government was instructed to ensure the payment of such benefits by October 1 even “in the event of an increase in the income of able-bodied family members,” including salaries. Alexandra Akimova notes that the Ministry of Labor has already prepared amendments, but the bill is undergoing interdepartmental coordination and has not yet been submitted to the State Duma.

Ekaterina Volkova, Anna Zanina