In particular, this law increases the salary that gives the right to HQS status from 167 thousand rubles per month to 750 thousand rubles per quarter, for all HQS, except for some categories. This rule comes into force on March 1, 2024.
Since the new requirements for the salary level of HQS come into force on the first day of the last month of the first quarter of 2024, different standards apply in different months of the quarter (in January and February the old one, in March there is a new one), so there are still a lot of disputes and no have a clear opinion on exactly what amounts need to be paid to HQS in January, February and March 2024.
We would like to express our opinion regarding this situation, taking into account the analysis of not only legislative norms, but also their interpretation by the Ministry of Internal Affairs.
During private meetings of the Russian Ministry of Internal Affairs with the business community, the version was repeatedly expressed that since this norm comes into force only on March 1, 2024, and the law, as a general rule, does not have retroactive force, in order to comply with the legislation on compliance with the conditions of the HQS status, the salary level fees in January and February (the first 2 months of the first quarter) of 2024 should be 167 thousand rubles per month, in March 2024 the required level of wages must be calculated proportionally based on the requirement for the total amount of wages for the quarter, that is, it must be at least 250 thousand rubles per month, in this case the conditions for the payment of wages (remuneration) of HQS will be respected.
Many wondered what the basis for this point of view was, because based on the literal interpretation of the law, it follows that since at the end of the 1st quarter of 2024 a new norm will already be in force, according to which the salary level for HQS for the 1st quarter of 2024 should already be 750 thousand rubles on a quarterly basis, even if in January and February payments were less than 250 thousand rubles per month. It was expected that the Ministry of Internal Affairs should give official clarification on this issue.
In this regard, the Confidence Group company has repeatedly applied to the Ministry of Internal Affairs with requests to clarify this point, however, in response to them, the Ministry of Internal Affairs presented a point of view opposite to that expressed orally at the meetings (following the link you can see several answers we received in Ministry of Internal Affairs, the content of which is similar in meaning).
The essence of the clarifications provided is that, although the law is not retroactive and cannot be applied to the first and second months of the 1st quarter of 2024, in total at the end of the 1st quarter the salary of HQS should still be at least 750 thousand rubles.
That is, if in January and February payments amounted to 167 thousand rubles in each month in accordance with the old norm, then in March the HQS remuneration must be paid in the amount of at least 416 thousand rubles in order to comply with the new requirement for the amount of the total payment in the 1st quarter, which ends on March 31, 2024. It would not be a mistake to split the payment of this amount over several months of the first quarter.
We also adhere to this position, and until we receive official clarifications from the Ministry of Internal Affairs refuting it, we recommend that you pay attention to the clarifications we have already received and calculate the salaries of HQS in the 1st quarter of 2024 in such a way that the total amount for the 1st quarter is at least 750 thousand rubles, because there is a high risk that if this requirement is not met, the employer or customer of work (services) may lose the right to attract highly qualified specialists to work in Russia for a period of 2 years.
Moreover, if the employer or customer does not plan to continue cooperation with a specific HQS, then we recommend ending labor or civil relations with this HQS before February 29, 2024 inclusive, that is, until the norm on new wage requirements comes into force.
This is due to the fact that the termination of both an employment and service contract with a HQS is associated with a number of problems and currently unclear nuances, more about which below.
1) How to calculate the salary or remuneration of a HQS if labor or civil relations with the HQS are terminated during March 2024?
In this case, it is not clear on what principle the amount of salary (remuneration) of this HQS should be calculated. Should salary (remuneration) be calculated in proportion to the actual time when the HQS carried out labor activities or provided services, and if so, then how exactly:
- based on the amount of salary (remuneration) established per quarter, i.e. we should divide 750 thousand rubles by the number of days actually worked (days when services were provided) in the quarter;
- or we should proceed from the amount of salary (remuneration) established for the first two months of the quarter (namely 167 thousand rubles per month), and for the last month of the quarter salary (remuneration) are calculated based on that , that in this month, HQS should have paid 416 thousand rubles (so that it would be 750 thousand rubles per quarter), but because this month was not fully worked, this amount is divided by the number of days when the HQS actually worked or provided services.
It is not at all clear which calculation will be correct.
2) What to do if it is planned to terminate an employment or service contract with HQS?
In the event of termination of a contract or provision of services with a HQS, it is very important to take into account the rules for terminating such relations prescribed in the terms of the contract or provision of services itself, and if such conditions are not included there, in Articles 717 and 782 of the Civil Code of Russia.
If the HQS works under an employment contract, and the employer is not ready or does not plan to continue paying him wages in accordance with the new norm (and therefore cannot continue to cooperate with him on the terms and grounds provided for HQS), then the problem is even more serious. If there is no grounds for terminating an employment contract listed in Articles 77, 83 and 327.6 of the Labor Code of Russia, and the employee does not agree to terminate the contract by agreement of the parties, then there are no legal grounds for terminating the employment contract with such an employee, and it is not clear how to proceed in such situation.
We have sent a request to the Ministry of Internal Affairs with a request to clarify these points, and we will report the contents of the clarifications as soon as we receive them.
For more information, please contact the consultants of the Confidence Group company.
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