Operating mode for remote work. Contract with a remote worker: the more detailed, the better
Many companies have long been convinced of the real benefits of hiring remote workers, but literally until recently in Russia there was no legal basis for formal labor relations. How to properly apply for a job of remote employees, what is important to take into account in employment contracts, how to avoid financial risks - says Tatyana Shirnina, legal expert at IPK.
In 2013 the Labor Code Russian Federation(hereinafter referred to as the Labor Code of the Russian Federation) was supplemented by chapter 49.1 "Peculiarities of regulation of the work of remote workers". These innovations were due, among other things, to the high development of information technology. And in practice, the principle of remote work has been used for a long time, but there was no legal regulation for a long time.
Today, outside the location of the employer (at home, in another city / country, in a restaurant, on the beach, etc.), specialists with different skill levels work: engineers, lawyers, accountants, translators, journalists, editors, designers, programmers, auditors. Despite the fact that remote work is already a well-established phenomenon in Russia, there are no fewer questions. Let's try to answer some of them.
So, first of all, let's consider the main question:
How to formalize an employment relationship with a remote worker?
The main assistant for you will be the Labor Code, namely the above-mentioned chapter 49.1, which, by the way, provides for two options for concluding an employment contract:
1) an employment contract with a remote worker can be concluded by visiting the employer's office in person;
2) an employment contract with a remote worker can be concluded by exchanging electronic documents. This option can only be used if the parties have enhanced qualified electronic signatures.
When hiring a remote worker, the list of documents required to conclude an employment contract is no different from the general list provided for in Article 65 of the Labor Code of the Russian Federation. Just one caveat: if an employment contract for remote work is concluded by exchanging electronic documents with a person entering into an employment contract for the first time, this person receives an insurance certificate of compulsory pension insurance on his own.
The obligation of the employer to familiarize employees with the documents before signing the employment contract is also preserved. The method of acquaintance depends on how the interaction between the employee and the employer takes place: by exchanging electronic documents (here we remember the enhanced qualified electronic digital signature) or by visiting the employer's office directly.
Conditions of an employment contract with a remote worker
When drawing up an employment contract, it is necessary to be guided by article 57 of the Labor Code of the Russian Federation. But since this is a special type of labor activity, it is necessary to reflect in the text of the contract that the work is performed remotely.
In addition, there are other special conditions of the employment contract with this category of workers. One of the prerequisites is to indicate the place of work and there are no exceptions for remote workers in this part. However, how to specify it if we do not know in what place the employee will perform his labor function today and tomorrow?
Let's turn to article 312.1. TC RF:
“Remote work is the performance of a labor function defined by an employment contract outside the location of the employer, its branch, representative office, or other separate structural unit(including those located in another locality), outside a stationary workplace, territory or facility directly or indirectly under the control of the employer, provided that it is used to perform this labor function and to interact between the employer and the employee on issues related to its implementation, information - public telecommunications networks, including the Internet network”.
According to representatives of Rostrud (Letter of Rostrud dated 07.10.2013 No. PG / 8960-6-1 "On determining the place of work of a remote worker"), an employment contract for remote work should contain information about the place of work where the remote worker directly performs the duties assigned to him with an employment contract. Of course, the clarification of Rostrud is not equated with regulatory legal acts. However, the State Labor Inspectorate acts as its territorial body, therefore, the policy will be similar. That is, if in employment contract with a remote worker there is no such condition as a “place of work”, the company may be held administratively liable under Part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
So where to look for the answer? The reference may be a letter from another federal agency executive power- The Ministry of Finance of Russia dated 01.08.2013 N 03-03-06/1/30978, which concluded from the definition of remote work given in Art. 312.1 of the Labor Code of the Russian Federation: for an employee, the place of permanent work is the place of his location.
Perhaps we should agree with this opinion. After all, it is logical that the place of work of the "remote worker" is the place of his actual location at the time of the performance of the labor function.
Working conditions in the workplace
As you know, working conditions at the workplace are determined by the results of a special assessment of working conditions. But how can an employer describe these factors if the employee can move around the world every day?
In fact, the legislator has provided for exceptions in terms of the mandatory special assessment of working conditions for certain categories of workers. These include remote workers (Part 3, Article 3 of Federal Law No. 426-FZ of December 28, 2013 “On Special Assessment of Working Conditions”). Consequently, since there is no need to conduct a special assessment of working conditions, the employer is automatically relieved of the obligation to prescribe in the employment contract with a remote worker such items as: “guarantees and compensation for work with harmful and (or) dangerous working conditions” and “working conditions at work place."
Working mode
Here is another important question: how to build a work schedule with remote control? It all depends on how important the employer is to the time frame in which the employee will perform his labor function. This is also connected with the way in which the accounting of working time is set: the employer will keep it on his own or entrust the employee to mark work hours by self-taping.
As one of the options - to provide for remote employees the usual working mode adopted in the company. For example: “The employee is set a 40-hour five-day work week, with two days off. The employee is set working days from Monday to Friday, working hours from 9:00 to 18:00, a break for rest and food - 1 hour from 12:00 to 13:00, which working time not included and will not be charged. Saturday and Sunday are days off.
The second option (if it is not important in what period of time the work will be performed) is to set the employee, for example, a 40-hour five-day work week, with two days off. Specify which days are considered working days, which days off. With regard to the time of the beginning and end of the working day, as well as a break for rest and meals, prescribe that they are set by the employee independently. In this case, you can write like this: “Duration of one working day: not less than 5 hours and not more than 9 hours a day. The duration of the break for rest and meals is 1 (one) hour, which is not included in working hours and is not paid.
Additional features
From the foregoing, we can conclude that it is necessary to fix the ways of interaction between the employee and the employer. In the employment contract, it is recommended to additionally prescribe the means of communication (mobile phone, e-mail, Skype, etc.) that the employee and the employer will use, and the time during which the employee must answer the call, incoming message / call back / write a message / go to connection.
Whatever mode of operation you specify in official documents, remember: a remote worker may be at a point with a different local time. Therefore, when determining the mode of operation, specify time zones. Otherwise, it may happen that when you get in touch with an employee at 8:00 Moscow time, you will not wait for him. After all, if he ends up, say, in New York, he will have a deep night - 00:00.
Don't forget your vacation
Part 2 Art. 312.4 of the Labor Code of the Russian Federation obliges employers to prescribe the procedure for granting annual paid leave and other types of leave to a remote worker in an employment contract.
What else should be provided in the employment contract with the "remote worker"?
It is recommended to clearly state what equipment (software and hardware) will be used by the employee in the performance of his labor function, by whom it is provided, what actions the employee needs to perform and within what time frame it is necessary to inform the employer about a breakdown, technical malfunctions. If the employee will use his equipment (for example, a laptop, telephone, etc.), the employment contract should additionally regulate the procedure and terms for paying compensation for its use.
In order to track the quality and quantity of the work performed, you can additionally prescribe the procedure, terms and form for the employee to submit reports on the work performed.
Of course, as with any relatively convenient option, remote work has its pitfalls.
1) When accepting a remote worker in a company, interviews are often conducted via Skype or by e-mail. In this case, the employer bears the risk of incompletely and unreliably assessing the business qualities of a specialist. Agree, at home, when there is a lot of reference material around (books, manuals, the Internet), it is much easier to pass an interview.
2) Since remote work implies the possibility of electronic document management, including the signing of an employment contract, certain difficulties may arise. For example, the employer signed an employment contract and sent it to the employee, but he did not return the signed document and left all copies with him, or sent a scanned copy.
Unfortunately, due to simple carelessness in the event of a litigation, the terms of the employment contract may be recognized as inconsistent with all the ensuing consequences. Therefore, remember: the employment contract must be signed by both parties with an enhanced qualified electronic digital signature or a "live" signature on paper.
3) The question of control remains open, namely, how many hours a day a person works. That is, the interaction must be clearly regulated, otherwise the employer will never know how long the remote worker worked on a given day - 8 hours or only 2 hours.
4) When an employment contract is terminated at the initiative of an employee, the employer often receives a scan of his letter of resignation. However, based on the existing judicial practice, the courts do not recognize the scanned application as evidence, indicating that the employee’s will to dismiss must be expressed either in writing with the employee’s “live” signature, or signed with an enhanced qualified electronic digital signature.
5) From the point of view of the procedural code, it is not entirely clear from what point the employee has the right to apply to the court for the restoration of violated rights.
Here is an example from practice. The Moscow City Court in the Appeal ruling dated 01/20/2015 in case N 33-1146 / 2015 found that on May 21, 2014 the plaintiff received a dismissal order by e-mail, printed it out, put his signature on it and also sent this order by e-mail the defendant. Thus, the plaintiff received a copy of the dismissal order on May 21, 2014 and from that date he knew about his dismissal, and was not deprived of the opportunity to apply to the court with a claim for reinstatement at work before the expiration of one month. However, the plaintiff applied to the court on July 7, 2014, that is, he missed the one-month deadline.
Thus, in order to calculate the time limits for appealing against the actions of the employer, it is the employee's awareness of the violation of his rights that matters, including the receipt of an electronic copy of the order and the employee's subsequent actions.
Of course, it is often convenient for both employees and employers to use the remote collaboration format, but please note that not all specialists can be hired remotely. For example, this applies to those whose result of labor is expressed in material products. This, by the way, is one of the differences between remote workers and homeworkers.
Another interesting question that arises in practice: Can all employees work remotely in small companies?
The legislation not only does not contain restrictions on the number of employees employed remotely, but also does not define a list of positions that cannot be occupied in this form. For example, if this is an online store, why not arrange remote work for everyone? There is only one condition: the nature of the duties performed must comply with the definition of remote work (Article 312.1 of the Labor Code of the Russian Federation), namely:
a) performance of a labor function outside the location of the employer;
b) performance of a labor function outside a stationary workplace, territory or facility directly or indirectly under the control of the employer;
c) the use of public information and telecommunication networks, including the Internet, to perform the labor function;
d) interaction between the employer and the employee on issues related to the performance of the labor function, public information and telecommunication networks, including the Internet.
That is, if we objectively consider the possibility of such an organization of labor, we must again take into account that not all categories of employees, as noted above, can work remotely. As a rule, "remote workers" are intellectual workers. Therefore, it is still quite difficult to imagine a company where only “remote workers” really work. Secondly, it is difficult to imagine how complicated the red tape with documents is, and what huge risks of losing them in the process of electronic exchange.
At the moment, there is no judicial or inspection practice on this issue, so what assessment the authorized bodies can give to such an organization of work can only be guessed at.
As rightly noted in explanatory note to the draft law on amending the Labor Code of the Russian Federation in terms of regulating the work of remote workers, “modern economic development is impossible without productive employment, which is a derivative of an efficiently functioning flexible labor market that allows you to quickly respond to economic challenges.”
Of course, remote work has many advantages, for example:
- reduction of the employer's costs for renting premises and organizing workplaces;
- saving time, energy and money for the employee due to the absence of transport problems - delivery to the workplace and back;
- growth of labor productivity during its organization in accordance with the desire of the employee in more comfortable conditions.
Remote work increases business activity and employment of the population, since people have the opportunity to work without leaving their homes or other convenient locations. The benefits for employers are obvious: to attract workers without the cost of equipping workplaces, and at the same time receive income from their productive activities.
Tatyana Shirnina, Leading Associate of the Labor Law Department
Remote work is the performance of a labor function defined by an employment contract outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another locality), outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer, provided use for the performance of this labor function and for the implementation of interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet.
Remote workers are considered to be persons who have concluded an employment contract on remote work, that is, this condition must be expressly indicated in the employment contract.
A contract for remote work may be concluded for the performance of work, the result of which has no material expression (for example, with programmers, consultants, journalists, programmers and other knowledge workers). The intellectual product created by the remote worker is the property of the employer.
Remote workers are fully covered by labor legislation and other acts containing labor law norms, taking into account the specifics established by the Labor Code of the Russian Federation.
A remote worker is part of the organization's staff.
Important! The Labor Code of the Russian Federation provides for cases where interaction between an employer and a remote worker or a person entering a remote job can be carried out through the exchange of electronic documents, as well as cases where interaction is prohibited through electronic document management.
At the same time, the method of interaction between the remote worker and the employer (the use of paper or electronic document management in cases permitted by law) should be determined in the employment contract.
Through the exchange of electronic documents, an employment contract on remote work and agreements on changing the terms of the employment contract on remote work determined by the parties can be concluded. In this case, the employer no later than three calendar days from the date of conclusion of the employment contract, he is obliged to send to the remote worker by registered mail with notification a duly executed copy of this employment contract on paper.
When concluding an employment contract for remote work by exchanging electronic documents, all documents presented upon admission to work, with the exception of a work book (passport or other identity document; insurance certificate of compulsory pension insurance; documents of military registration; document on education and (or) on qualifications; a certificate of the presence (absence, termination) of a criminal record and (or) the fact of criminal prosecution; other documents) can be presented to the employer by a person applying for remote work in the form of an electronic document. However, at the request of the employer, this person is obliged to send to him by registered mail with notification notarized copies of these documents on paper.
The employer can acquaint, by exchanging electronic documents, a remote worker (a person concluding an employment contract on remote work) with an order for employment, internal labor regulations, other local regulations directly related to the work activity of the employee, the collective agreement, other orders (instructions) of the employer, notifications, requirements and other documents. In this case, the employer’s order (instruction) to terminate the employment contract on remote work, the employer is obliged to send to the remote worker on the day of termination of this employment contract by registered mail with notification a duly executed copy of the specified order (instruction) on paper.
If, in accordance with the Labor Code, an employee has the right or obligation to apply to the employer with a statement, provide the employer with explanations or other information, the remote worker can do this in the form of an electronic document.
The employer may, when a remote worker submits an application for the issuance of duly certified copies of documents related to work, provide the employee with these copies in the form of an electronic document, but only if such a method of provision is specified in the employee's application. Otherwise, the employer is obliged to send copies of documents to the remote worker by registered mail with notification. Regardless of the method of providing copies of documents, the employer must comply with the requirement no later than three working days from the date the employee submits the relevant application.
An employee is not entitled to use electronic document management to provide documents related to obtaining compulsory insurance coverage for compulsory social insurance in case of temporary disability and in connection with motherhood. The remote worker is obliged to send the employer the original documents provided for by federal laws and other regulatory legal acts of the Russian Federation by registered mail with notification.
Important! In cases where the Labor Code of the Russian Federation provides for the interaction of a remote worker or a person entering remote work and an employer through the exchange of electronic documents, enhanced qualified electronic signatures of both parties are used.
The procedure for obtaining and using such signatures is established federal law dated April 6, 2011 No. 63-FZ “On Electronic Signature”.
Each of the parties to the labor relationship is obliged to send in the form of an electronic document confirmation of receipt of the electronic document from the other party within the period specified by the employment contract on remote work.
The Labor Code of the Russian Federation establishes some features of the content of an employment contract with a remote worker and the fulfillment of the obligations of the employer arising in connection with the conclusion of the contract.
The place of conclusion of an employment contract on remote work, agreements on changing the terms of an employment contract on remote work determined by the parties, signed by exchanging electronic documents, shall be the location of the employer.
The employee chooses the place of performance of duties under the contract independently.
An employment contract on remote work, in addition to additional conditions that do not worsen the position of the employee compared to the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, may provide for an additional condition on the obligation of a remote worker to use performance of his duties under an employment contract on remote work equipment, software and hardware, information security tools and other means provided or recommended by the employer.
The procedure and terms for submitting reports on the work performed by remote workers, the amount, procedure and terms for paying compensation for the use by remote workers of equipment belonging to them or rented by them, software and hardware, information security tools and other means, the procedure for reimbursement of other expenses related to the performance of remote work determined by the employment contract on remote work.
The mode of working time and rest time of a remote worker is established by him at his own discretion, unless otherwise provided by the employment contract. This does not release the employer from the obligation to keep a record of the working time of such an employee.
The employment contract should determine the procedure for granting annual paid leave and other types of leave to a remote worker.
If an employment contract for remote work is concluded by exchanging electronic documents by a person who enters into an employment contract for the first time, this person receives an insurance certificate of compulsory pension insurance independently.
Important! By agreement of the parties, information about remote work may not be entered in the remote worker's work book, and when concluding an employment contract for the first time, a work book for a remote worker may not be issued.
In these cases, the main document on the labor activity and length of service of the remote worker is a copy of the employment contract on remote work.
In the absence of the above agreement, the remote worker provides the employer with a work book in person or sends it by registered mail with notification.
Important! The legislation of the Russian Federation establishes the features of the organization and labor protection of remote workers.
In order to ensure safe conditions and labor protection for remote workers, the employer is obliged to fulfill only the following obligations in the field of labor protection provided for by the Labor Code of the Russian Federation:
Investigation and accounting, in accordance with the procedure established by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, of accidents at work and occupational diseases;
Fulfillment of instructions of officials of the federal executive body authorized to carry out the federal state supervision for compliance with labor legislation and other regulatory legal acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established field of activity, and consideration of submissions from public control bodies within the time limits established by the Labor Code and other federal laws;
Compulsory social insurance of employees against industrial accidents and occupational diseases;
Familiarizes remote workers with the requirements of labor protection when working with equipment and means recommended or provided by the employer.
Important! Termination of an employment contract on remote work is carried out on the grounds provided for by the Labor Code.
At the same time, the employment contract may provide additional grounds for its termination at the initiative of the employer.
Telecommuting, or remote access work as it is called, is becoming more and more popular. There is no doubt that this mode of operation is convenient for both the employee and the employer. However, since remote work has not been around for very long, employers make mistakes in establishing it, regulating it, or dismissing it. Who can be set this mode of operation? How to do it? How is the interaction between the employee and the employer? On what grounds can a remote worker be fired? You will find answers to these and other questions in the article.
The essence of remote work
By virtue of Art. 312.1 of the Labor Code of the Russian Federation remote work is the performance of a labor function defined by the employment contract:
Outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another area);
Outside a fixed workplace, territory or facility directly or indirectly under the control of the employer.
The condition of remote work is the use of public information and telecommunication networks, including the Internet, for the performance of a labor function and for interaction between the employer and the employee on issues related to its implementation.
Remote workers are persons who have concluded an employment contract for remote work. They are subject to labor legislation and other acts containing labor law norms, taking into account the specifics established ch. 49.1 of the Labor Code of the Russian Federation.
Do not confuse remote work with home work. According to Art. 310 of the Labor Code of the Russian Federation homeworkers are persons who have concluded an employment contract for the performance of work at home from materials and using tools and mechanisms allocated by the employer or purchased by the homeworker at his own expense. The result of home work is a certain product, and the result of remote work is information, information, intellectual property.
Remote workers can be, for example, programmers, editors, accountants, teachers, lawyers. That is, those who carry out certain work at home or in another place that is not under the control of the employer, but interacts with him through the "Internet".
However, some employers make remote work wrong. For example, an employer entered into a fixed-term employment contract for remote work with a highly qualified foreign specialist for the position of a brand chef, whose actual place of work was a restaurant in the territory of another republic (see above). The appeal ruling of the Moscow City Court dated July 18, 2017 in case No. 33 ‑22475/2017 ). The question of whether this work is considered remote was not raised during the consideration of the case. Nevertheless, I would like to emphasize that in this case a regular employment contract should be concluded, according to which the workplace is a structural unit located in another location, but controlled by the employer.
In addition, the Ministry of Labor repeatedly (most recently in Letter dated 16.01.2017 No. 14 -2/OOG-245) expressed the opinion that at the moment the labor legislation does not provide for the possibility for the employer to conclude an employment contract on remote work with a citizen of the Russian Federation, a foreign citizen or a stateless person if he works outside the Russian Federation, since the conclusion of an employment contract on such conditions violates the Labor Code of the Russian Federation . In particular, the employer will not be able to fulfill its obligations to provide remote workers with safe working conditions and its protection ( Part 2 Art. 312.3Labor Code of the Russian Federation) due to the fact that federal laws and other regulatory legal acts of the Russian Federation that form labor legislation are valid only on the territory of our country ( Part 1 Art. 13Labor Code of the Russian Federation). It is recommended to conclude civil law contracts with such citizens.
Therefore, before registering an employee remotely, think carefully about whether the work performed falls under the definition of remote work.
Making a remote reception
A remote worker is hired according to the general rules provided for Art. 68Labor Code of the Russian Federation, but subject to the requirements ch. 49.1Labor Code of the Russian Federation and Federal Law No. 06.04.2011 63 ‑FZ “On Electronic Signature”(Further - Law No. 63 -FZ).
An employment contract on remote work and agreements on changing the terms of this contract determined by the parties may be concluded by exchanging electronic documents ( Part 1 Art. 312.2 of the Labor Code of the Russian Federation). In this case, both the employee and the employer must use enhanced qualified electronic signatures in the manner prescribed by Law No. 63 ‑ FZ.
Despite the conclusion of an electronic employment contract, the legislation establishes the requirement for the availability of a paper form of the contract. The employer, within three calendar days from the date of conclusion of this agreement, is obliged to send to the remote worker by registered mail with notification a duly executed copy of this agreement on paper.
It follows from this provision that the employer sends a copy of the employment contract signed by him to the employee. For the employee, however, there is no obligation to send the employer by mail a second, signed copy with his own hand.
Before concluding an employment contract, a remote worker must submit the documents listed in Art. 65 of the Labor Code of the Russian Federation. How does this happen?
AT article 312.2 of the Labor Code of the Russian Federation it was established that when concluding an employment contract on remote work by exchanging electronic documents, the documents provided for Art. 65 of the Labor Code of the Russian Federation, can be presented to the employer by a person applying for remote work in electronic form. At the request of the employer, this person is obliged to send to him, by registered mail with notification, notarized copies of these documents on paper.
If such an agreement is entered into by a person for the first time, he/she shall obtain an insurance certificate of compulsory pension insurance independently.
In addition, there are features in the design of the work book. In particular, by agreement of the parties to the employment contract on remote work, information about it may not be entered in the work book of the employee, and when concluding an employment contract for the first time, the work book may not be drawn up at all.
Thus, if no entries have been made in the work book about the work of a remote worker, the main document on his work activity, confirming seniority, for him there will be an employment contract on remote work.
If an employee wants an entry about his remote work to be entered in the work book, he must hand it over to the employer in person or send it by registered mail with notification.
Since making an entry in the work book about the remote nature of work is not provided instructionfilling out work books approved Decree of the Ministry of Labor of the Russian Federation dated 10.10.2003 No. 69 , employment record is made according to the general rules.
Like ordinary workers, remote workers must be familiarized with the documents provided for before concluding an employment contract. Part 3 Art. 68 Labor Code of the Russian Federation(with internal labor regulations, other local regulations directly related to the employee's labor activity, collective agreement). Such familiarization can also be carried out by exchanging electronic documents.
Based on the employment contract, the employer issues an order for admission to remote work. It is drawn up in the same way as when receiving other employees of the organization. At the same time, in the column “Conditions for employment, nature of work” indicate: “Remote work”.
If the interaction between the employee and the employer is carried out by exchanging electronic documents with digital signatures, then you can familiarize the employee with the order for employment in the same way ( Part 5 Art. 312.1Labor Code of the Russian Federation).
Labor contract
First of all, we note that the type of work must be indicated in the employment contract - remote ( Art. 312.2Labor Code of the Russian Federation). For example:
The employee performs a labor function outside the location of the employer (remotely).
At the same time, like any other employment contract, the remote work contract must include the mandatory conditions named in Art. 57 of the Labor Code of the Russian Federation, including:
Place of work. The organization and its location are indicated here. But the place of performance of work (address of place of residence, email address) should be indicated in the additional condition "Clarification of the place of work";
The mode of working time and rest time, etc. The mode of work can be set the same as for all employees of the organization, but may differ;
The remote worker has the right to determine the mode of working time and rest time independently, unless otherwise provided in the employment contract (part 1 of article 312.4 of the Labor Code of the Russian Federation).
Terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). Here, be sure to indicate the form of salary payment - transfer to a bank card ( Art. 136 Labor Code of the Russian Federation).
Indicate in the contract the method of interaction between the employee and the employer, as well as the period for confirming the receipt of an electronic document from the other party ( Art. 312.1 of the Labor Code of the Russian Federation).
In addition to the mandatory ones, by agreement of the parties, additional conditions may be included in the employment contract that do not worsen the position of the employee ( Part 5 Art. 57,Part 6 Art. 312.2 of the Labor Code of the Russian Federation), in particular:
On the procedure for making entries in the work book ( Part 6 Art. 312.2);
On the procedure and terms for providing the employee with the equipment necessary for the performance of labor duties, other technical means, as well as software in accordance with the requirements of the employer ( Part 8 Art. 312.2). For example:
The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation necessary for the employee to perform his job duties within ______________.
If this duty is assigned to the employee, the condition may be as follows:
The employee independently provides himself with a computer, printer, fax, telephone, means of access to the Internet.
On the procedure for the employee to use information security tools in accordance with the recommendations of the employer ( Part 8 Art. 312.2);
On the procedure and terms for reimbursement to the employee of expenses related to remote work, if, under the terms of the contract, he uses equipment and other software and hardware belonging to him or rented ( Art. 188,Part 1 Art. 312.3 of the Labor Code of the Russian Federation). At the same time, it is advisable to clearly state in the contract exactly what expenses are subject to reimbursement, what documents they must be confirmed with, etc.;
On the procedure and timing and form of submission by the employee of reports on the work performed ( Part 1 Art. 312.3).
In addition, you can specify additional grounds for terminating the employment contract at the initiative of the employer ( Part 1 Art. 312.5 of the Labor Code of the Russian Federation).
Nuances of remote work
Since communication between the employer and the remote worker during work is carried out via electronic communication, it is assumed that both the employee and the employer send any documents in electronic form. But in Art. 312.1 of the Labor Code of the Russian Federation it is clarified that such documents, in addition to the employment contract, orders, notifications and other documents, in particular, are statements, explanations and other information from the employee. It was also established that if an employee sent such a document as an application for the issuance of duly certified copies of documents related to work ( Art. 62Labor Code of the Russian Federation), the employer, no later than three working days from the date of filing the said application, is obliged to send copies to the remote worker by registered mail with notification or, if indicated in the application, in the form of an electronic document.
If an employee falls ill or is going on maternity or parental leave, he must send the employer the originals of the relevant documents (disability certificate, application, etc.) by registered mail with notification (Article 312.1 of the Labor Code of the Russian Federation).
Separate attention is paid to the employer's compliance with labor protection standards in relation to remote workers.
By virtue of Art. 312.3 of the Labor Code of the Russian Federation in order to ensure safe conditions and labor protection for remote workers, the employer performs only some of the obligations established by Art. 212 of the Labor Code of the Russian Federation, in particular:
Investigation and accounting, in accordance with the procedure established by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, of industrial accidents and occupational diseases ( par. 5 pm 2);
Fulfillment of instructions of officials of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established field of activity, and consideration of submissions from public control within the terms established by the Labor Code of the Russian Federation, other federal laws ( par. 20 hours 2);
Compulsory social insurance of workers against accidents at work and occupational diseases ( par. 21 hours 2).
In addition, the employer must familiarize teleworkers with labor protection requirements when working with equipment and facilities recommended or provided by the employer.
Other obligations of the employer to ensure safe conditions and labor protection, established by the Labor Code, federal laws, other regulatory legal acts of the Russian Federation and constituent entities of the Russian Federation, do not apply to remote workers, unless otherwise provided by an employment contract on remote work.
Features upon dismissal
There are peculiarities in the dismissal of remote workers, in particular, at the initiative of the employer.
By general rule an employment contract with such employees can be terminated on the grounds established by the Labor Code. At the same time, the employment contract may provide additional grounds for the dismissal of a remote worker at the initiative of the employer ( Part 1 Art. 312.5Labor Code of the Russian Federation). For example, dismissal for repeated non-fulfillment of planned indicators, for regular non-compliance with the format of the report on the completed task.
Note: additional grounds for dismissal should be established precisely by the employment contract. If they are established not by an employment contract, but by another document, for example, a job description or a local act of the organization, the dismissed person will be reinstated.
For example, a remote worker fired for repeated failure to meet planned targets was reinstated by the court, since such an additional ground for dismissal was provided not by the employment contract, but by the job description. The employer considered that it was an integral part of the employment contract.
However, the court concluded: job descriptions, taking into account their content, the procedure for adoption, form, terms of approval by the employer, the procedure for familiarizing the employee with them, cannot be qualified as an integral part of the employment contract concluded by the parties and do not meet the requirements Art. 56 Labor Code of the Russian Federation(are not an agreement of the parties), so dismissal according to the rules Part 1 Art. 312.5. Labor Code of the Russian Federation, which provides for the right of the employer to dismiss a remote worker on additional grounds agreed upon by the parties, prescribed exclusively in the employment contract, illegally ( The appeal ruling of the Sverdlovsk Regional Court dated May 11, 2017 in case No. 33 ‑7310/2017 ).
The job description will be an integral part of the employment contract if, in accordance with this contract, it is an annex to it. However, in any case, it becomes mandatory only in part official duties and requirements for the worker. If the job description establishes the grounds for dismissal, they are not subject to application, since such an instruction, unlike an employment contract, is not considered an agreement between the parties.
The termination of labor relations with a remote worker is formalized by an order (unified form T-8), the basis of which should be a specific provision of the contract or article of the Labor Code of the Russian Federation. The employee must be familiarized with the order under the signature. If this document cannot be brought to the attention of the employee or he refuses to familiarize himself with it under the signature, an appropriate entry is made in the order (instruction).
If the interaction between the employer and the remote worker is carried out by exchanging electronic documents using enhanced qualified electronic signatures, the dismissal order must be sent to the employee in advance in electronic form for review. The employee, in turn, having assured the order with an electronic signature, is obliged to send it back.
On the day of dismissal, a paper copy of the order must be sent to the employee by registered mail with notification ( Part 2 Art. 312.5Labor Code of the Russian Federation).
On the basis of the order, if the work book of the employee was filled out, an entry is made in it about the dismissal. Here is a sample entry for dismissal on an additional basis established by the employment contract.
records | the date | Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law) | Name, date and number of the document on the basis of which the entry was made |
||
number | month | ||||
Employment contract terminated | Order dated 11/20/2017 |
||||
at the initiative of the employer in connection with | № 13 ‑ at |
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with repeated delays | |||||
delivery of verified materials, | |||||
clause 6.3.1 of the employment contract | |||||
about remote work from 15.04.2016 | |||||
№ 15/16 ‑ etc., part one of article 312.5 | |||||
Labor Code | |||||
Russian Federation. | |||||
OK Specialist Petrova I. K. Petrova | |||||
MP Ivanov |
We examined the features of remote work - in particular, those related to hiring, execution of an employment contract, working hours and rest time, organization of labor protection and dismissal. For the rest, the general norms of the Labor Code apply to remote workers, including those regarding the granting of holidays, accounting for working hours depending on its mode, etc.
And of course, it is not necessary to hire new employees for remote work - you can also transfer existing ones. But such a transfer is carried out only by agreement of the parties. Unilaterally, at the initiative of the employer, it is possible only if there are good reasons.
Modern features of technological progress allow both employers and employees to use new methods of interaction with each other, including at a distance without actually visiting the place of work - such relationships are called remote work. Legislation in the Russian Federation already has certain mechanisms and features for regulating the work of remote workers, which are disclosed in certain provisions of the Labor Code of the Russian Federation. The remote work agreement has a number of significant advantages, as well as certain disadvantages, and nuances that each participant in such a relationship should also be aware of.
Remote work according to the Labor Code of the Russian Federation - what is it
Under remote work, Russian legislation means the relationship that occurs between an employee and an employer without personal contact.
That is, when the actual place of work is not located on the territory of the employer, and all communication between the parties to the relationship, including in matters of their registration or change, is carried out remotely, using various technical means. Accordingly, such relationships have a number of features and differences from traditional employment, which should be taken into account by all parties to the relationship. In more detail, these differences are disclosed in the following provisions of the Labor Code of the Russian Federation:
- Article 312.1 establishes general provisions, and also defines remote work in general, its features and the main concepts used in such work.
- Art.312.2 considers specific principles registration of relationships without personal contact between the applicant and the employer.
- Article 312.3 regulates the specific features of the regulation of the work of remote workers, primarily in matters of labor protection and their safety when using the means of labor provided by the customer.
- Article 312.4 regulates the rest regime for the employee, relieving the parties of a number of standard obligations in the framework of labor relations.
- Article 312.5 deals with the principles according to which the termination of the relationship takes place, which can also be carried out without personal contact between the parties.
Though legal regulation work of remote employees is ensured by the provisions of the above articles included in Chapter 49.1 of the Labor Code of the Russian Federation, they are also fully subject to general principles establishing and maintaining relationships. However, it is precisely the provisions of the above articles that are dominant in contentious issues - they are in priority, because they consider a specific type of relationship.
Features of labor regulation of remote workers
Remote work, by its nature, has many features, according to which the regulation of the work of employees employed in this way is ensured. Among such features, which should first of all pay attention to both employers and workers, are the following: character traits remote work:
How to conclude an agreement on remote work
The conclusion of an employment contract on remote work suggests the possibility of a different approach than when formalizing an employment relationship in a standard form. So, the procedure for issuing such an agreement in the general case is as follows:
The contract for remote work should not necessarily be concluded at a distance and through the exchange of documentation in electronic form. The legislation does not impose restrictions on the possibility of personal contact between the worker and the employer, and the formalization of the employment process in a standard form.
Differences between remote work and home-based and freelancing
The concepts of freelancing and home-based work are often confused with the remote nature of the relationship. Although the concept of remote work was originally introduced primarily to legalize and simplify the activities of many actual freelancers, at the moment there are certain differences in this approach. So, freelancing implies, first of all, the self-employment of an employee, the performance of various tasks from various customers in order to generate income at his own peril and risk, and in some regions of the Russian Federation it is regulated by registering the status of a self-employed citizen or registering as an entrepreneur. Remote work implies a full-fledged labor relationship with a specific employer and all the rights and obligations of the parties provided for by labor legislation.
Home work does not provide the possibility of formalizing relationships in electronic format and is most often associated with the actual production of goods at home. Such relationships are regulated by the provisions of Chapter 49 of the Labor Code of the Russian Federation and imply other regulatory rules for maintaining documentation and work activities.
The development of technology and means of communication has led to the fact that many workers no longer need to be in the office to perform their labor function. So, lawyers, accountants, designers, IT specialists and even sales department specialists can work outside the office if telemarketing is used. Not so long ago, legislators also recognized this fact, fixing certain rules for remote work in the Labor Code. How to properly arrange such employees? Is it possible to transfer existing employees to remote work? What "pitfalls" can an accountant stumble upon in connection with the remote work of employees? We will answer these and other questions in this article.
What is the benefit
Remote work is convenient both for an employee who does not need to spend time, money and effort on daily trips to the office, and for an employer who can not only save on the costs of organizing a stationary workplace (rent, communications, equipment, programs, support ), but also more flexible approach to hiring staff. After all, a remote worker can work not only outside the office, but also from another city and even from another country. The behavioral stereotypes of young employees, who are initially more focused on working outside the office, also fall on the same scale.
All of these factors, taken together, are driving the growing popularity of remote work. But legislation, until recently, such a phenomenon as “remote work” bypassed, and employers were forced to invent various “schemes”. But last year, Federal Law No. 60-FZ dated 05.04.13, the Labor Code was finally supplemented with a new one, dedicated to the peculiarities of regulating the work of remote workers.
How is it different from home work?
The first thing you should pay attention to when studying the provisions of the new chapter of the Labor Code of the Russian Federation is the difference between a "remote worker" and a homeworker. After all, the regulation of home work in the Labor Code of the Russian Federation was initially, but in practice these norms were not applied to formalize relations with those who do not sit in the office “from nine to six”. And that's why.
First, the norms on homeworkers are designed in such a way that they regulate labor activity of a production nature. Such a conclusion already follows from the definition given in the Labor Code of the Russian Federation: a homeworker is a person who has concluded an employment contract for the performance of work at home from materials and using tools and mechanisms allocated by the employer or purchased by the homeworker at his own expense. Those. we are talking about something material, created by the hands of an employee. It is not easy to apply this article to a lawyer, accountant, website editor or designer.
Secondly, a homeworker, according to the Labor Code of the Russian Federation, is a full-fledged worker, in respect of whom all the procedures provided for by the Code must be followed (full registration, equipment of the workplace, ensuring its safety and compliance with labor protection requirements, etc.). And this is impossible in a situation with a remote worker. It is not always possible to meet with him once to conclude an agreement.
The legislator tried to eliminate these shortcomings by adopting the rules on remote work. The Code now clearly states that a remote worker performs a labor function. At the same time, he performs it outside the location of the employer (branch, representative office, other separate structural unit) and even outside the stationary workplace, territory or facility, directly or indirectly under the control of the employer. Interaction between an employee and an employer takes place over public telecommunication networks, including via the Internet (Labor Code of the Russian Federation). As a general rule, the employee independently provides himself with a workplace and equipment.
The remote worker does not need to pass medical checkup, an employment contract with him can be concluded and terminated electronically. Finally, a "remote worker" does not have to make an entry in the work book, pay overtime and ensure labor safety in full. In general, the conditions are much more realistic to implement than the rules for homeworkers.
How to draw up a contract
Let's move from theory to practice. First of all, we will consider what wording should be included in the employment contract if it is planned that the employee will work remotely.
So, the contract must specify the nature of the work. For example, this may be the following wording: "The employee performs the labor function provided for by this employment contract outside the employer's location (remotely)". The place of work indicates the address of the employee (or another address at his request) - this is required by the Labor Code of the Russian Federation. It is also required to indicate the mode of operation, since the Labor Code of the Russian Federation does not make exceptions for remote work. Here the wording will be standard: “The employee is set the normal working time - 40 hours a week, a five-day working week with two days off - Saturday and Sunday, the duration of daily work is 8 hours.”
Further, in the contract, it is necessary to fix the provisions regarding the subordination of the employee to the rules of the internal labor schedule (Labor Code of the Russian Federation). Here we recommend the following wording: “The internal labor regulations apply to the employee in the part that does not contradict the essence of the terms of this employment contract on remote work.”
The contract must establish the procedure for providing the employee with various resources. So, you can specify that "the employee independently provides himself with a computer, telephone and access to the Internet." Or you can impose a similar obligation on the employer: “No later than 5 working days from the date of conclusion of this employment contract, the employer undertakes to provide the employee with a computer, telephone, and ensure the availability of an Internet connection.” The third option is to fix the obligation of the employer to compensate the employee for the equipment and (or) pay for the phone and the Internet. For example, like this: “The employer undertakes, no later than the fifth day of each month, to compensate the employee's expenses for paying bills for the Internet and mobile phone at actual costs, but not more than 10 thousand rubles per month. Compensation is paid in accordance with the Regulations on Compensation of Expenses for Employees Employed Outside the Location of the Employer (Remotely), approved by the employer.”
Finally, the contract should fix the terms and procedure for the delivery of work, as well as the procedure and frequency of communications with the employer, indicating the email addresses to which the employee must send all his messages to the employer.
What to write in the Timesheet
The obligation of the employer to record the time actually worked by each employee (part 4 of the Labor Code of the Russian Federation) in connection with remote work is not canceled. In our opinion, the report card for the "remote worker" can be filled out as follows: on weekdays, turn out (code "I" or "01"), on weekends and holidays - rest (code "B" or "26"). The number of hours worked is set in accordance with the employment contract.
You can go the other way, fixing in the employment contract that the employee distributes working time and rest time at his own discretion (the option provided for by the Labor Code of the Russian Federation as the main one), and notifies the employer in writing about the working hours. In this case, you can fill out the Time Sheet based on employee reports. But this option is not regulated by law, so we would not recommend using it everywhere. Moreover, this can also lead to tax problems (see the question about compensation below).
Transfer an employee to telecommuting
For remote work, you can accept not only new employees, but also transfer existing ones. To do this, you need to draw up an additional agreement to the employment contract. The subject of this agreement is the change in the nature of labor. Accordingly, in the agreement you include all the wording regarding the new labor regime, which we cited above. Be sure to include the date from which the new operating procedure applies.
"Remote" business trip
The next interesting point that an accountant may face is the payment of travel allowances to a remote employee. For example, a “remote” lawyer can travel to other cities to participate in the consideration of a case, or attend various seminars and forums. A logical question arises: can an employee working remotely have business trips? And, accordingly, will the tax authorities accept such expenses?
By virtue of the Tax Code of the Russian Federation, remote workers are subject to labor legislation and other regulatory legal acts containing labor law norms, taking into account the specifics established by Chapter 49.1 of the Labor Code of the Russian Federation. This chapter does not contain any exceptions for business trips. Thus, the employer can send a remote worker on a business trip. And, accordingly, take into account all the associated costs in taxation.
Whether to register a separate division
We note another important point for an accountant: hiring an employee for remote work is guaranteed not to lead to the formation of a separate unit. After all, the Labor Code explicitly states that such work is performed outside a separate structural unit (including those located in another locality), outside a stationary workplace, territory or facility that is directly or indirectly under the control of the employer. And according to the Tax Code, a separate subdivision of an organization is any subdivision that is territorially isolated from it, at the location of which stationary workplaces are equipped.
As you can see, these two definitions directly contradict each other. So there is no question of registering a unit in this case.
Accounting for compensation
The Labor Code provides for the possibility of establishing compensation for remote workers related to the use of personal property to perform work. Moreover, you can compensate not only the costs of communications and the Internet, but also pay for the “depreciation” of a computer, tablet and other equipment. It is important here that this condition be fixed precisely in the employment contract, and not in a separate document (memo with a visa or order), as the Labor Code of the Russian Federation allows for ordinary workers.
Another nuance is related to the distribution of reimbursable expenses for expenses incurred in connection with the performance of labor duties and outside them. For expenses in the form of a monthly fee, such distribution can be made on the basis of the ratio of the number of working hours and the total number of hours in the period. This data, of course, must be taken from the employment contract and the time sheet.
For expenses that can be clearly attributed to a particular time (payment for communication costs, for example, or for paying for certain programs, accesses, etc.), it is also important for the employer to know whether this or that expense was made during working hours. But in conditions when the employee himself determines the mode of working time and rest time, this is difficult to do. Accordingly, it is necessary either to require an appropriate report from the employee and keep it in the accounting department, or to establish a clear working time in the employment contract.