There have been changes in the Labor Code. Now it has a new chapter regulating relations between employers and remote workers 1 . What is the practical significance of such changes, as well as who can be classified as remote workers, read in the article.
Currently, hundreds of thousands of people work outside the location of the employer's offices. More often, remote workers are designers, programmers, translators, analysts engaged in online commerce and the like, which does not require the presence in the employer's office. Until recently, such relations simply could not be formalized by an employment contract that meets the realities of existing relations. As a result, such activities were formalized in several ways: as with a homeworker (which, most likely, did not correspond to reality, since homework involves the production of some kind of product), or such labor relations were “covered up” by civil law contracts, but it also happened that labor relations were not formalized at all.
The risks of such "unformed" relations fell on the shoulders of both parties, but the employee was in a less protected position. Agreements with the employer on pay and working conditions were not supported by a bilateral document, and, accordingly, the person was deprived of guarantees for the promised earnings, pension and social protection. If the employer needed to represent its interests in another region, it was required to register a separate division of the company, which meant the cost of renting, equipping the office with everything necessary, etc. All this imposed on the employer often unrecoverable financial costs. Therefore, many companies shied away from registering such a legal presence and risked being "caught" tax office or Rostrud. At the same time, the conclusion employment contract with a homeworker also did not solve the problem, because the home of a remote worker could be recognized as a separate division of the company with all the ensuing consequences. In addition, in this situation, a conflict arose over the payment of personal income tax. The budgets of several subjects legitimately claimed the tax. Looking ahead, let's say that the employer's place of work is prescribed in the employment contract, respectively, personal income tax will go to the budget of the subject of the Russian Federation where the employer is located.
New in the Labor Code
On April 8, 2013, the Federal Law of April 5, 2013 No. 60 FZ came into force, aimed at “integrating” many remote workers into the system of labor relations. A separate chapter 49.1 has appeared in the Labor Code, which combines the features of the employment of remote workers.
In particular, Article 312.1 of the Labor Code defines what constitutes remote work. There are two essential features of such work: it is the execution labor function outside the location of the employer or his separate subdivision and use for the implementation of activities and interaction between the employer and the employee of public information and telecommunication networks (the Internet).
The same article defines general provisions about remote work. It has been established that persons who have concluded an employment contract on remote work are considered remote workers. Such employees are subject to labor legislation and other acts containing norms labor law.
Particular attention is drawn to a new way for Russian law of interaction between a remote employee and an employer - this is an exchange electronic documents. Moreover, the parties are obliged to use enhanced qualified electronic signatures 2 .
The remaining four articles of the new chapter reveal the features of concluding an employment contract on remote work, performing such work, labor protection, working hours and termination of the contract.
The parties to the employment contract are given ample opportunities to determine its conditions. Below are some confirmations of what has been said.
According to the new norms, an employment contract can be concluded both on paper and by exchanging electronic documents. In the second case, the employer is obliged no later than three calendar days from the date of conclusion of the electronic employment contract, send a paper copy of such contract to the remote worker by registered mail with notification. At the same time, the location of the employer is indicated as the place of conclusion of the "remote" contract or agreements on changing its conditions. In this case, there is no need to register a separate subdivision. This is another clear difference from the homeworker, whose address is in without fail spelled out in the employment contract.
Documents required for employment 3 can be presented by a remote worker at electronic form. In this case, the employer has the right to demand notarized copies of them, which we advise you to do, due to the likelihood of forgery of a document.
Please note: when concluding an employment contract for remote work by exchanging electronic documents, a person entering into such an agreement for the first time must independently obtain an insurance certificate of state pension insurance. Recall that, according to general rule 4, this certificate is issued by the employer.
Note that not only the signing of the employment contract itself, its annexes, but also familiarization with the internal local acts employer can take place by exchanging electronic documents.
As for the provision by the employee of the work book and its completion, in this matter there are the following options for action:
- the work book is provided by the employee personally or by registered mail with notification;
- a work book is not provided, and a record of remote work is not entered into it.
And when concluding a “remote” contract for the first time, a work book may not start at all. As for the second option, it is possible only by agreement of the parties. The law does not establish in what form such an agreement should be reflected - in written or oral. In our opinion, it is better to reflect it in the concluded employment contract. In this case, confirmation seniority employee will be a written copy of the remote work agreement.
Conditions of an employment contract for remote work
One of the conditions of the "remote" contract may be the obligation of the employee to use equipment, software and hardware and other means provided or recommended by the employer. By agreement of the parties, the procedure and deadlines for the submission of reports on the work performed by remote employees are established. In addition, the parties independently determine the amount, procedure and terms for paying compensation for the use of equipment and other means belonging to them or rented by them, as well as the rules for reimbursement of other expenses related to remote activities.
Due to the specifics of remote work, an abbreviated list of labor protection requirements has been defined for the employer remote employees 5 . Yes, from general list Only three of the employer's occupational health and safety responsibilities 6 remain with respect to teleworkers:
- provision of sanitary and preventive services for employees in accordance with the requirements of labor protection, as well as the delivery of employees who fall ill at the workplace to medical organization if necessary, to provide them with urgent medical care;
- compulsory social insurance of workers against industrial accidents and occupational diseases;
- familiarization of employees with the requirements of labor protection.
A special regime of working time and rest time has been established for a remote worker. "Remote" can distribute its working time and rest at one's own discretion, unless, of course, the employer has special wishes in this regard and unless otherwise provided by the employment contract 7 . For example, the contract may state that the employee is required to be online for eight hours a day on the Internet or perform certain work for four consecutive hours during the day.
The procedure for granting annual paid leave and other types of leave to a remote worker is determined by the employment contract in accordance with the Labor Code. That is, with regard to vacations, the new chapter does not provide for any special features for remote employees.
As for the termination of an employment contract, the legislator has established the possibility to provide in the contract itself the grounds for its termination, in addition to those specified in the Labor Code. If the remote employee is familiarized with the order to terminate the employment contract electronically, then the employer on the day of termination of this contract is obliged to send the employee a copy of the order on paper by registered mail with notification.
It should be noted that the dedication of a separate chapter to the regulation of the labor of remote workers in Russian labor law was the first time. At present, the practice of its application has not been formed, and it is too early to say whether it will solve frequently occurring issues. Nevertheless, this is a serious step towards regulating the labor relations of remote employees with certain specifics. The positive effect of the adoption of the new chapter is seen in the redistribution of labor forces and, in particular, in regions where there is a shortage of specialists in a particular industry. We believe that there is also a positive trend for small and medium-sized businesses. After all, small companies often cannot afford the necessary space, and by hiring remote workers, this problem can be solved. We should not forget about poorly protected groups of citizens, for example, people with disabilities, mothers who are busy caring for a small child. They get the opportunity to work officially, counting on the guarantees of Russian labor legislation. The new provisions of the law also remove the problem of transferring employees, if necessary, from one city to another, and, accordingly, the cost of such a transfer.
If an employee is hired by an organization who will work remotely, that is, work outside the company's office, then there are two ways to formalize an employment relationship with him. This may be the conclusion of an employment contract for remote or home work. We will consider in more detail the differences between these two types of employment for remote employees in our article.
Remote and home work: differences, similarities, legal requirements
Today, more and more workers "go online" and start working remotely via the Internet. Web-designers, copywriters, managers, programmers, consultants and representatives of many other professions now have the opportunity to work from home and from anywhere in the world. For employers, the registration of such employees “on a distance” has a number of significant advantages. For example, there is no need to rent an office in order to keep the staff, buy office furniture, office equipment, pay utilities and pay taxes. Today, representatives of many professions can simply work remotely, but at the same time officially be on the staff of the company.
The concept of "home work" existed in the Labor Code of the country for a long time, but in the spring of 2013, Federal Law No. 60-FZ came into force, which amended certain legislative acts Russian Federation. In particular, Labor Code The Russian Federation was supplemented by Chapter 49.1 entitled "Peculiarities of labor regulation of remote workers". Thus, a new concept of "remote work" was introduced. Remote work has a number of legal features and important differences from home work. Let's look at them in a table.
|
Characteristic/ |
remote work |
home work |
|
Concept definition |
Teleworkers are individuals who have entered into a contract with an employer labor contract about remote work. Remote work is the performance by an employee of a function defined by an employment contract outside the location of the employer, its branch, representative office, or other separate structural unit, outside a stationary workplace, territory or facility directly or indirectly under the control of the employer, provided that information and telecommunication networks, including the Internet, are used to perform this labor function and interact between the employee and the employer, including the Internet (Article 312.1 of the Labor Code RF). |
Home workers are persons who have entered into an employment contract for the performance of work at home. The work is performed from materials and using tools and mechanisms that the employer will allocate to the employee or that the employee will buy on his own at his own expense. (Article 310 of the Labor Code of the Russian Federation). |
|
Activity |
Remote workers, as a rule, are engaged in creative work or intellectual activity. Designers, journalists, copywriters, programmers, accountants, etc. can work remotely. |
Home workers are engaged in the production of certain products at home, that is, handmade. For example, seamstresses, packers, pen assemblers, etc. can work at home. |
|
Working mode |
If the employment contract on remote work does not specify the specific time of work of the remote worker of the company, then he has the right to set the time and mode of work on his own. (Article 312.4 of the Labor Code of the Russian Federation). At the same time, the employer has the right to keep records of the time worked by a remote worker, and a time sheet can be kept based on the remote worker's report. |
Home workers are not subject to the regime of work and rest established in the organization, and they have the right to perform their labor functions at any time convenient for them. That is, home-based workers set their own working hours. This is possible because wages depend on the volume of work performed, the delivery of finished products on time, and not on the amount of time worked. |
|
Place of work |
Remote work is carried out outside the location of the employer, branch, branch, representative office, separate subdivision, outside the stationary workplace, territory or facility that is under the control of the employer. That is, a remote worker can work from anywhere in the world, at home or on the street - it does not matter. The only condition for the implementation of remote work is the availability of the Internet. |
Home work, as the name implies, is carried out at home. |
|
Assessment of workplaces |
The employer is not obliged to carry out certification of the workplaces of its remote employees. (Article 312.3 of the Labor Code of the Russian Federation) |
The employer is obliged to certify the workplaces of home workers, because homeworkers are subject to labor legislation and other acts containing labor law norms. (Articles 310 and 212 of the Labor Code of the Russian Federation) |
|
Providing workers with means of labor |
A remote worker, as a rule, independently provides himself with the necessary office equipment at his workplace. At the same time, the employment contract with a remote worker should reflect such aspects as: the procedure and terms for ensuring necessary equipment, software, information security tools (if an employee needs them to perform work). If necessary, labor tools and other equipment can be transferred by the employer to his remote worker on a rental basis. |
Work is performed at home from materials using tools, mechanisms that were allocated by the employer or purchased by the homeworker at his own expense. Members of his family may participate in the work assigned to the homeworker. At the same time, labor relations between the employer and family members home worker does not occur. An employment contract with a homeworker determines the provision of raw materials necessary for the implementation of work, materials, semi-finished products, as well as payment for manufactured products, reimbursement of funds spent by the homeworker on materials, as well as the procedure and terms for the export of finished products. |
|
Equipment depreciation compensation |
The amount, procedure and terms for payment of compensation for the use by remote workers of equipment belonging to them or rented, software and hardware, information security tools are determined by the employment contract on remote work. (Article 312.3 of the Labor Code of the Russian Federation) |
In the event that a home-based employee of an organization uses his own mechanisms, devices, equipment and tools for work, the employer is obliged to pay him compensation for their wear and tear. (Article 310 of the Labor Code of the Russian Federation). An employment contract with a home-based worker must stipulate the procedure and terms for paying compensation, reimbursement of other expenses associated with the performance of work at home. |
|
Labor protection of employees |
In relation to its teleworkers, the employer is obliged to conduct an investigation and record of accidents at work and occupational diseases; comply with the instructions government agencies those exercising supervision in the sphere of labor; carry out compulsory social insurance of employees against accidents at work and occupational diseases; familiarize employees with labor protection requirements. (Article 312.3 of the Labor Code of the Russian Federation). Other security responsibilities safe conditions and labor protection apply to the employer only if they are specified in the employment contract for remote work. |
The employer is obliged to ensure working conditions and labor protection in full for an employee doing work at home, in the same way as for any other employee of the organization. This requirement provided for in Article 212 of the Labor Code of the Russian Federation "Obligations of the employer to ensure safe conditions and labor protection." It is also necessary to remember that the work assigned to home-based employees of the company cannot be contraindicated for them for health reasons, and all types of home-based work should be performed only in conditions that meet the requirements of labor protection (Article 311 of the Labor Code of the Russian Federation). |
|
Document flow |
Both paper and electronic document management can be carried out between the employer and the remote worker. In cases where, when hiring, a remote worker must be familiarized in writing against signature with the local regulations of the company, orders of the employer, orders, notifications, requirements, then the remote worker has the right to familiarize themselves with them through electronic document management, and also use them for signing required documents its enhanced qualified electronic signature. To get a job, a remote worker can send documents to the employer either personally or by e-mail. That is, an employment contract with a remote worker can be concluded via the Internet, and the employer must send a certified copy of it to his employee by registered mail with notification within three days (Article 312.2 of the Labor Code of the Russian Federation). All documents necessary for the employer to draw up an employment contract with a remote worker can be sent to him by registered mail with notification. |
The employee delivers all the documents necessary for the employment of a home-based worker to the employer in person and in printed form. In the office of the organization, the home worker must familiarize himself with documents, regulations, official duties, collective agreement. An employment contract with a homeworker is concluded only in writing, and the nature of the work must be indicated in the contract itself - “Work at home”. When working at home, all documents between the employer and the employee are transferred on paper. |
|
Recording in work book |
Information about remote work may not be entered in the employee's work book by agreement of the parties. |
An entry about work in the work book of a home-based worker is made the same as for all other “Non-home-based” employees of the company. At the same time, there is no need to make any special explanations and clarifications that the employee will perform his duties at home. |
|
Termination of the employment contract |
The Labor Code allows the employer to terminate the employment contract with his remote worker at a distance, that is, his personal presence is not necessary. To do this, an order of dismissal must be sent to the employee's e-mail. After the remote worker certifies the order with his electronic signature, he must send the document back to his employer. A certified copy of the order must be sent to the remote worker by registered mail with notification (Article 312.5 of the Labor Code of the Russian Federation). Next, the employee must be made a full cash settlement. A remote worker may be dismissed on the general grounds provided for in Article 77 of the Labor Code of the Russian Federation, and on other special grounds provided for in his employment contract. |
The grounds for terminating an employment contract with a homeworker must be provided for in his employment contract. (Article 312 of the Labor Code of the Russian Federation). In general, labor relations with a home worker, as with any other category of workers, may be terminated in accordance with the reasons provided for in Article 77 of the Labor Code of the Russian Federation. When terminating the employment contract, the personal presence of the employee is mandatory, as well as his personal signing of all documents. When dismissing a home worker, the employer is obliged to follow the general procedure in accordance with the Labor Code of the country. |
In general, experts note that the employer has the right to independently choose the option of formalizing labor relations with his remote worker, depending on the specifics of his work in each case. Both options have their pros and cons for the employer. But there are some points that employers should pay attention to when formalizing an employment relationship with remote employees.
Note
Dear readers! For representatives of small and medium-sized businesses in the field of trade and services, we have developed a special program "Business.Ru", which allows you to maintain full-fledged warehouse accounting, trade accounting, financial accounting, and also has a built-in CRM system. Both free and paid plans are available.
Important to remember!
Many employers ask themselves the question: is the place where a remote worker works, a separate structural unit of the organization? This issue is important primarily because in connection with the emergence of a separate structural unit, the employer has a new obligation to pay taxes and register such a unit with the tax authorities. In accordance with the Tax Code of the country, stationary jobs must be created at the location of a separate structural unit. The workplace is stationary if it is created for a period of more than one month. But is workplace remote worker stationary?
Based on the definition given in Article 312.1 of the Labor Code of the country, remote work does not have signs of the work of a separate division of the organization, which means that the conclusion of an agreement on remote work with an employee does not lead to the emergence of a separate division. Therefore, it is not necessary to register a remote worker as a separate structural unit of the company with the tax authorities.
Andrey Sokolov
Articles written
Remote work, or remote work, involves activities outside the office that are regularly paid. Such a regime may be associated with the company's inability to accommodate all its employees or with the desire of the specialist himself.
Most often, a remote workplace is preferred by web designers, copywriters, SEO and SMM specialists, tutors, editors, proofreaders and representatives of other professions. It is easier for them to work remotely, because they perform specific tasks or projects that can be evaluated remotely without the need for process control from superiors.
What is remote work
A remote worker may not be on the staff, or, conversely, be the most ordinary employee, but work at home with the permission of his superiors. Accordingly, he either pays all due taxes, including social security contributions, or quietly works remotely in the shadows.
The labor legislation does not reflect the specifics of regulating the work of remote workers. True, according to the Labor Code of the Russian Federation, a remote employee is one who has entered into an official employment contract for remote work with a company.
Therefore, the legislation clearly defines who a remote worker is. Of course, only with official employment, such employees are fully covered by labor law. Of course, in practice, formalizing relations with a remote employer is quite rare.
Remote work involves:
- conclusion of an agreement on remote cooperation or an oral agreement;
- receiving an assignment from the management indicating the conditions and terms;
- written consent of the employee to perform the task (it can be confirmed, for example, by e-mail);
- performing work remotely, including making changes to it after delivery;
- receiving payment for the work done at the end of the month or for each project separately.
According to the Labor Code of the Russian Federation, electronic signatures must be used when communicating by e-mail. So far, only a few use this procedure, since obtaining such a signature is a rather expensive and troublesome process.
In addition, an employee working at home or in a coworking center can work remotely not only under an employment contract, but also, for example, under a civil law contract - as an individual providing certain services (website development, SEO promotion, etc.). ).
Working remotely may involve the allocation of a certain budget for its implementation. For example, a web developer or SEO specialist may ask for money not only to pay for their work, but also to pay for hosting or advertising campaign. These relationships are also documented and may require official confirmation of the costs incurred (payment receipts, etc.). Also, the remote worker can be provided with technical means to perform the work: a computer, a camera, a camera, a car, and much more. In this case, it is provided in labor agreement and sometimes in a separate contract.
How to get a remote
A remote worker or homeworker has the right to require the employer to formalize cooperation, i.e. offer to conclude an employment contract with him on remote work. For this, as with ordinary employment, you will need standard documents: passport, diploma (in some cases), insurance certificate. Copies of these papers can be sent by mail or handed over to the employer personally.
An employment contract with a remote worker includes the following items:
- rights/obligations of both parties;
- responsibility for non-performance of work;
- payment amount;
- definition of RRM (remote workplace);
- procedure for accepting work (project);
- description of technical and other equipment that can be provided to the employee;
- description of sanctions in case of delay in payment;
- details of the parties.
The agreement (a sample or form can be downloaded on our website) is signed by the parties and takes effect from that moment or a specific date specified in the document. Despite the fact that the form of such an agreement is written, it is not required to be notarized.
If the employee has electronic signature(simple or enhanced), then you can use it. In this case, the parties are obliged to confirm receipt of the electronic document within the time limits established by the agreement.
An entry in the employment record for employment is drawn up by agreement between the employer and employee. If the work is one-time, then this is usually not practiced. Very often, homeworkers practice remote work as a part-time job. Therefore, an entry in the Labor Code is not important for them, but the transparency of working conditions and guarantees of payment are very important. After the delivery of the project, an act of acceptance and transfer and other documents that confirm the fact of fulfillment of obligations can be signed.
Employee rights
If all documents are completed correctly and you have become staff member, then, despite the remote nature of the work, they have the right to count on payment on time, the deduction of all taxes, compensations, including payments related to dismissal due to downsizing or liquidation of the organization, sick leave and much more.
"Payment: accounting and taxation", 2012, N 7
How often lately we hear about remote work, freelancers, remote work and other things related to work outside the office. Of course, now it is difficult enough to imagine a virtual office, online meetings and much more that relates to remote work. However, as you know, everything is developing, and, perhaps, in the near future, many employers will be able to abandon offices and organize their business directly on the network. What is meant by remote work? Representatives of what professions or specialties can be involved in such work? How to formalize labor relations with employees working outside the office? In the article you will find answers to these and some other questions.
The concept of remote work
With development information technologies sometimes you don't have to be at the workplace to do any work. Already, on-line work is gaining ground, when employers and employees, using special technical means, maintain working contacts while being in different places.
First, let's figure out what kind of work is remote. First of all, this is work outside the office. The essential attributes of remote work are modern views telecommunications (e-mail, web interfaces, software products for on-line interaction). The performers in this case are at a distance from the place where the results of their work are in demand. labor activity.
Such work may exist in various forms. For example, home work is carried out at the place of residence of the employee, while work can be performed both from materials and using tools and mechanisms allocated by the employer, and purchased by the homeworker at his own expense (Article 310 of the Labor Code of the Russian Federation).
The so-called freelancing is also a kind of remote work. In this case, individuals who are not associated with labor relations with any employers provide various services to both enterprises and organizations, and individuals. Freelancers usually formalize their employment relationship with a civil law contract.
The next type of remote work is remote work: the employer's office is not located in the region or city where the employee works.
Note that remote work can be carried out:
- at home (the workplace is equipped at home, the employee does not need to be present at the office);
- on business trips or at customer sites (for example, in construction companies when it is necessary to control the activities of construction teams, e-mail, ICQ, mobile communications are used);
- with the condition of mandatory appearance in the office with a certain frequency, for example, once every two weeks (this mode of remote work is suitable for managers of Internet projects: to perform their duties, they only need a computer with Internet access and mobile communications, however, sometimes they need to attend planning meetings with the company's management, attend seminars, conferences, trainings);
- in the territory of the employer, which is far from the place where the employer is based (for example, the employer is located in one city, and the employee performs work in another city).
As we see, certain work can be performed within the framework of both civil law and labor relations. At first glance, civil law relations are more acceptable for remote work. However, at the same time, the employee has some additional responsibilities: he himself must take care of finding customers, studying the market, providing himself with resources and increasing professional level. Moreover, in accordance with the current legislation, he will have to register as individual entrepreneur. Not all employees want this, and therefore most of them still prefer labor relations.
Who can work remotely?
So, we have defined what counts as remote work. Now let's figure out what kind of specialists can be involved in work outside the office?
The most common remote work among representatives creative professions, such as designers, artists, writers, translators, programmers. In addition, the activities of media market specialists do not require a permanent workplace, for example, in the field of advertising, activities in the field of information technology, consulting, etc.
To work at home, typists, dispatchers on the phone, assemblers of various products or parts can be accepted. Their activities do not have to be controlled: you just need to check the results of their work.
Today, remote work is performed mainly by:
- designers (from landscape to web design);
- employees who maintain the website in working condition (internet marketers, site administrators, moderators, etc.);
- editors;
- journalists;
- IT-specialists (writing programs, testing software products).
Regulatory regulation
The current labor and civil legislation does not regulate the entire range of types of remote work. The only type that is more or less regulated is home work (Chapter 49 of the Labor Code of the Russian Federation and the Regulations on the working conditions of homeworkers<1>). But even in relation to him, there are many questions and ambiguous interpretations of the norms of the Labor Code.
<1>Approved by the Decree of the State Committee for Labor of the USSR, the Secretariat of the All-Union Central Council of Trade Unions of September 29, 1981 N 275 / 17-99.
For example, it is not clear how to keep a time sheet of a homeworker, whether it is possible to fire him for absenteeism or appearing in a state of alcoholic or other toxic intoxication. In addition, the procedure for assessing the conditions for performing work at home for compliance with labor protection requirements by the employer raises questions.
In 2011, the Russian Union of Industrialists and Entrepreneurs put forward the idea to separately prescribe in the Labor Code the provisions on the labor of workers outside the employer's territory. However, this idea was not developed, as the public's attention was riveted to more scandalous norms, such as an increase in the length of the working week and others, but in vain. For example, currently a Moscow company, in order to remotely use the services of an employee in Nizhny Novgorod, which, say, represents an online store, must register a separate structural unit there - a branch or representative office. However, this is not always advisable, especially if this worker works at home via the Internet and the organization has no other employees in Nizhny Novgorod. As a result of this, organizations often evade registration, and, accordingly, there are risks of being held liable by the state labor inspectorate or the tax service.
Advantages and disadvantages of remote work
Like any other work schedule or method of organizing work, remote work has its pros and cons. For clarity, we present them in the table.
| Advantages | Flaws | |||||
| Cost savings (rental pay, communal payments etc.) | Lack of assigned responsibilities and leverage on employees | |||||
| Savings on office equipment service), stationery accessories | impossibility operational work With remote worker | |||||
| Savings on taxes, deductions and social package | The inability to control employee's activities | |||||
| Ability to pay less wages than an employee office worker | Lack of a fixed office negatively affects the image companies | |||||
| Remote workers are less likely to be absent and go on sick leave | Work efficiency depends on from the professionalism of the remote employee, because he does not have opportunities to interact with colleagues and structural divisions | |||||
For workers, remote work also has both advantages and disadvantages. negative sides. For example, they like the lack of control from the authorities, the dress code. For some workers, remote work is an opportunity to cut off contact with people they don't like. In addition, people who work outside the office like that they independently organize the work process and can do household chores in parallel.
At the same time, workers may not be satisfied with the lack of society, a stable workload and constant earnings. If the relationship is formalized by a civil law contract, then employees are not provided with vacations and other guarantees and compensations provided for by labor legislation.
As you can see, there are advantages and disadvantages for both the employee and the employer. In any case, the issue of using remote work in the company is decided by the employer.
Features of registration of labor relations
When using remote work, the employer may have some difficulties with determining the workplace, accounting for working hours, the possibility of attracting disciplinary responsibility.
Let's start with the employment contract. Article 57 of the Labor Code of the Russian Federation contains a list of information and conditions to be included in an employment contract. So, one of the required job condition. Moreover, if an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area, it is necessary to indicate the place of work, the separate structural unit and its location.
Usually, the place of work is determined by the location of the employer - an organization or an individual entrepreneur, and in order to fulfill the above requirement of the Labor Code, it is enough to indicate in the employment contract that the place of work is a specific organization, for example Vasilek LLC. Note: although the labor legislation does not contain a requirement to indicate the address of the place of work, we recommend that you nevertheless indicate the address of the employer in the employment contract.
If an employee is accepted for remote work in a separate structural unit located in another locality or other locality, it is required to fix in the employment contract that the place of work is the corresponding separate structural unit of the organization located at a specific address. For example, if Romashka LLC is located in Moscow, and the employee is admitted to the Nizhny Novgorod branch of Romashka LLC, it is necessary to indicate this and indicate the address of the branch in Nizhny Novgorod.
If the employee is accepted for permanent work in another locality, but there is no separate structural unit of the organization, it is necessary to indicate in the employment contract that the place of work is this organization, and additionally note that the employee will fulfill his labor obligations in another locality. In this case, the question may arise: will the employee not have to arrange a business trip? You don't have to. The specified condition in the employment contract just confirms that the employee works where he lives.
Note. Indication in the employment contract of the settlement for the implementation of the labor function, which is different from the location of the organization, will help resolve the issue of vacancies available to him in this area, in cases established by the Labor Code:
- Art. 74 - if the terms of the employment contract determined by the parties have changed for reasons related to changes in organizational or technological working conditions, and the employee does not agree to work in them;
- Art. 76 - when deciding on the removal of an employee in the event of suspension for a period of up to two months of a special right that an employee has (licenses, rights to manage vehicle, the right to bear arms, another special right), if this entails the impossibility for the employee to fulfill the obligations under the employment contract;
- pp. 2, 3 h. 1 tbsp. 81 - when deciding on the termination of an employment contract at the initiative of the employer in connection with a reduction in the number or staff of employees or inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification;
- pp. 2, 8, 9, 10 or 13 h. 1 art. 83 - when deciding on the termination of an employment contract due to circumstances beyond the control of the parties;
- Art. 84 - in case of termination of the employment contract due to violation of the rules for its conclusion, if the violation of these rules excludes the possibility of continuing work;
- Art. 261 - upon dismissal of a pregnant employee due to the expiration of the employment contract, which was concluded for the duration of the duties of the absent employee.
An additional condition that may be included in the employment contract is the specification of the place of work - an indication of the structural unit and its location or workplace. Note that with remote work, this may not be at all. We recall that, by virtue of Art. 209 of the Labor Code of the Russian Federation, a worker is understood to be a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Therefore, when working remotely, you can:
- specify in the employment contract, while the employee will have to be in certain places, but these places will not be controlled by the employer;
- do not specify in the contract, thereby allowing the employee to independently determine the place where he will perform the work.
On the one hand, it is very important to indicate the workplace, since it is the absence from it that can be regarded by the employer as absenteeism, respectively, it is possible to apply disciplinary measures up to and including dismissal.
Note. Absenteeism - absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (clause "a "clause 6, part 1, article 81 of the Labor Code of the Russian Federation).
On the other hand, for the employer, the main thing is the performance of the work and is it so important where the employee is, if all the work is done on time and with high quality.
We cannot but highlight the point of view of some authors that, even if the workplace of a remote worker is not fixed in the employment contract, it can be established later, for example, by order or other local regulatory act. This position is based on paragraph 35 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2. Therefore, if it is important for the employer that the remote worker be in a specific place for some time, an order can be issued to determine the workplace. Accordingly, the employer will have legal basis for the application of disciplinary measures.
The next mandatory condition of the employment contract is labor function(work according to position in accordance with staffing, profession, specialty, indicating qualifications; specific type of work assigned to the employee). We believe that in the case of remote work, the labor function of an employee should be clearly defined. This can be done both in the employment contract and in job description so that the parties to the employment relationship can clearly understand the obligations of the employee, the fulfillment of which the employer may require.
If the employee's labor function is not described in detail, disagreements may arise between the parties to the employment contract, which, as practice shows, are not always resolved in favor of the employer.
Time tracking
Working hours - the time during which the employee, in accordance with the rules of internal work schedule and the terms of the employment contract must perform labor duties, as well as other periods that relate to working time. Article 91 of the Labor Code of the Russian Federation establishes the obligation of the employer to record the time actually worked by each employee. For this purpose, the Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1 provides for unified forms T-12 "Time sheet and payroll calculation" and T-13 "Time sheet". But how to take into account the working time of an employee who works outside the office?
The legislator has not regulated this issue either, therefore, we believe that the accounting of the working time of an employee working at a distance must be kept, relying on his good faith.
Based on Art. 21 of the Labor Code of the Russian Federation, in accordance with which the employee must conscientiously fulfill his labor duties and comply with the rules of the internal labor schedule, it is possible to fix in the employment contract a provision on the obligation to notify the employer about absence from the workplace (if it is determined by the employer) and to prohibit working beyond the established working hours time.
It turns out that the time sheet will be filled out on the basis of data on the working hours of a particular employee, as well as deviations from the norm and working hours. This approach is also confirmed by the instructions for use. unified forms, in accordance with which the costs of working time are taken into account in the time sheet either by the method of continuous registration of attendances and absences from work, or by registering only deviations (absences, lateness, overtime hours etc.).
Document management for remote work
Currently, the issue of the exchange of documents between a remote worker and his employer is not regulated at the legislative level, however, like most of the nuances of the labor activity of workers in this category.
Unfortunately, even with the existence of Federal laws on electronic digital signatures, the norms of labor legislation still do not provide for the possibility of drawing up documents regulating labor relations (employment contracts, orders, etc.), in in electronic format and signing them with an analogue of a handwritten signature, for example, an electronic digital signature.
Of course, it is best to personally meet with the employee when his signature on documents is required. However, this is not always feasible. We believe that it is possible to send documents by mail (with a list of attachments and a return receipt). It is worth noting that with such an exchange of documents there is a risk that they will be lost or copies of the employer will not be returned by the employee, but this is currently the only way to comply with labor laws.
Summarize
Distant work is associated with certain difficulties, since it is practically not regulated by labor legislation, so the majority of workers who work outside the office remain in the shadows and are formally unemployed.
Until there is clarity on the regulation of remote work, we recommend concluding not an employment contract, but a civil law contract. It is on the basis of the latter that the performer will create artistic or musical works, translate or edit texts, hold presentations in his city, etc.
A.I. Suverneva
Journal Expert
"Salary:
Accounting
and taxation"
Many companies have long been convinced of the real benefits of hiring remote workers, but literally until recently in Russia there was no legal framework 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 of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) was supplemented by chapter 49.1 “Peculiarities of regulating 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, that's just legal regulation hasn't been 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 who enters into an employment contract for the first time, this person receives an insurance certificate of compulsory pension insurance independently.
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, 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, with the condition of using for the performance of this labor function and for the interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet.
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 the employment contract with a remote worker does not contain such a 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 letter of another federal executive body - the Ministry of Finance of Russia dated 08/01/2013 N 03-03-06 / 1 / 30978, which draws a conclusion 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 on a daily basis? different corners Earth?
In fact, the legislator has provided for exceptions in terms of the mandatory special assessment of working conditions for certain categories of workers. These included remote workers (part 3 of article 3 federal law dated December 28, 2013 N 426-FZ "On a special assessment of working conditions"). Therefore, since there is no need to special assessment 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 the workplace”.
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 work 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 is not included in working hours and will not be paid. 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 working 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 means of communication ( mobile phone, e-mail, Skype, etc.) that will be used by the employee and the employer, and the time during which the employee must answer the call, incoming message / call back / write a message / get in touch.
What mode of operation would you prescribe 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 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) the employee will use 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 incomplete and unreliable assessment business qualities 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 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 subsequent actions of the employee.
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) implementation of 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.
On the this moment neither judicial nor inspection practice on this issue no, therefore, what assessment can be given to such an organization of work authorized bodies, one can only guess.
As rightly noted in explanatory note to the draft law on amendments to the Labor Code of the Russian Federation in terms of regulating the work of remote workers, " modern development economy is impossible without productive employment, which is a derivative of a well-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
