Remote work. Remote workers: what an accountant needs to know

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 April 5, 2013 Labor Code, finally, was supplemented with a new chapter 49.1, devoted 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 Article 310 of 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, according to the Labor Code of the Russian Federation, a homeworker 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 a fixed workplace, territory or facility directly or indirectly under the control of the employer. Interaction between an employee and an employer takes place over public telecommunications networks, including via the Internet (Article 312.1 of the Labor Code of the Russian Federation). By 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 in electronic form. Finally, a "remote worker" does not have to make an entry in the work book, pay overtime work and ensure full safety at work. 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, it may be such a wording: “The employee performs the employment contract labor function outside the location of the employer (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 normal duration working hours - 40 hours a week, five-day working week with two days off - Saturday and Sunday, daily work duration - 8 hours.

Further, in the contract, it is necessary to fix the provisions regarding the subordination of the employee to the rules of internal work schedule(Article 15 of the 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." And 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 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 article 91 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 their own discretion (the option provided for by Article 312.4 of 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 it applies new order work.

"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 Article 312.1 of the Tax Code of the Russian Federation, remote workers are subject to labor legislation and other regulatory legal acts containing norms labor law, taking into account the features 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 entail education. separate subdivision. Indeed, Article 312.1 of 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 Article 11 of 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.

" № 12/2017

What is the essence of remote work? Who can work in this way? How is a telecommuting application processed? What are the mandatory terms of an employment contract? How is the exchange of documents between the employee and the employer in different situations? On what grounds can a remote worker be fired? What entries and when are made in the work book of such an employee?

Remote work or, as it is called, work with remote access, is becoming more and more popular, including in government agencies. 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 an 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 entered into remote work. They are subject to labor legislation and other acts containing labor law norms, taking into account the features established by Ch. 49.1 of the Labor Code of the Russian Federation.

Note:

Do not confuse remote work with home work. According to Art. 310 of the Labor Code of the Russian Federation, homeworkers are considered to be 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 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 remote work with a highly qualified foreign specialist for the position of a brand chef, whose actual place of work was a restaurant on the territory of another republic (see 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 area, but controlled by the employer.

In addition, the Ministry of Labor repeatedly ( last time in Letter No. 14-2/OOG-245 dated January 16, 2017) expressed the opinion that labor legislation currently does not provide for an 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 his obligations to provide remote workers with safe working conditions and its protection (part 2 of article 312.3 of the Labor 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 for the territory of our country (part 1 of article 13 of the Labor 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.

We make an appointment for "remote control".

A remote worker is hired according to the general rules provided for in Art. 68 of the Labor Code of the Russian Federation, but subject to the requirements of Ch. 49.1 of the Labor Code of the Russian Federation and federal law dated April 6, 2011 No. 63-FZ “On Electronic Signature” (hereinafter - Law No. 63-FZ).

Note:

An employment contract on remote work and agreements on changing the terms of this contract determined by the parties can be concluded by exchanging electronic documents (part 1 of article 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. employer within three calendar days from the date of conclusion of this agreement, he 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?

Article 312.2 of the Labor Code of the Russian Federation establishes that when concluding an employment contract on remote work through the exchange of electronic documents, the documents provided for in 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 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 work book. In particular, by agreement of the parties to an employment contract on remote work, information about it may not be entered in the employee's work book, and when concluding an employment contract for the first time, it 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 the length of service, for him will be an employment contract on remote work.

Note:

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 for by the Instructions for filling out work books, approved by Decree of the Ministry of Labor of the Russian Federation of October 10, 2003 No. 69, the entry for employment is made according to general rules.

Like ordinary workers, remote workers, before concluding an employment contract, must be familiarized with the documents provided for in Part 3 of Art. 68 of the Labor Code of the Russian Federation (with internal labor regulations, other local regulations directly related to labor activity employee, 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 of article 312.1 of the Labor 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 work (Article 312.2 of the Labor Code of the Russian Federation). For example:

The employee performs the 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";

working hours and rest time, etc. The working hours 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 amount tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments). Here, be sure to indicate the form of salary payment - transfer to bank card(Article 136 of the Labor Code of the Russian Federation).

Note:

Indicate in the contract the method of interaction between the employee and the employer, as well as the period for confirming receipt electronic document from the other side (Article 312.1 of the Labor Code of the Russian Federation).

In addition to the mandatory ones, by agreement of the parties, the employment contract may include additional conditions that do not worsen the position of the employee (part 5 of article 57, part 6 of article 312.2 of the Labor Code of the Russian Federation), in particular:

on the procedure for making entries in the work book (part 6 of article 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 of article 312.2). For example:

The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation necessary for the performance of labor duties by the employee, on time ______________.

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 of article 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 (Article 188, part 1 of Article 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, etc.;

on the procedure and timing and form of submission by the employee of reports on the work performed (part 1 of article 312.3).

In addition, you can specify additional grounds for terminating the employment contract at the initiative of the employer (part 1 of article 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 specifies 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 (Article 62 of the Labor Code of the Russian Federation), the employer, no later than three working days from the date of submission of the said application, is obliged to send copies to the remote worker by mail 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 of remote workers, the employer performs only some of the duties 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 accidents at work and occupational diseases (paragraph 17, part 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 time limits established by the Labor Code of the Russian Federation, other federal laws (paragraph 20, part 2);

compulsory social insurance of employees against industrial accidents and occupational diseases (paragraph 21, part 2).

In addition, the employer must acquaint teleworkers with labor protection requirements when working with equipment and facilities recommended or provided by the employer.

Note:

Other obligations of the employer to ensure safe working conditions and labor protection established by the Labor Code, federal laws, and other regulatory legal acts Russian Federation and subjects of the Russian Federation, do not apply to remote workers, unless otherwise provided by the employment contract on remote work.

Dismissal features.

There are peculiarities in the dismissal of remote workers, in particular, at the initiative of the employer.

As a 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 of article 312.5 of the Labor Code of the Russian Federation). For example, dismissal for repeated non-compliance planned indicators, for regularly failing to follow the format of the assignment report.

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 job description or local act organizations laid off will be reinstated.

For example, a remote worker who was dismissed 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, 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 of Art. 56 of the Labor Code of the Russian Federation (they are not an agreement of the parties), therefore, dismissal according to the rules of Part 1 of Art. 312.5. The 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, is illegal (Appeal ruling of the Sverdlovsk Regional Court dated May 11, 2017 in case No. 33-7310 / 2017).

Note:

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 grounds for dismissal are established by the job description, they are not subject to application, since such an instruction, unlike an employment contract, is not considered an agreement between the parties.

Termination labor relations with a remote worker is issued by 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 a this document it is impossible to bring 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 format for familiarization. The worker, in turn, assuring the order electronic signature must 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 of article 312.5 of the Labor 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.

		Information about hiring, transfer to another permanent job, qualifications, dismissal	Name, date and number of the document on the basis of which the entry was made


				Employment contract terminated	Order dated 11/20/2017
				at the initiative of the employer in connection with
				with repeated delays
				delivery of verified materials,
				clause 6.3.1 of the employment contract
				about remote work from 15.04.2016
				No. 15/16-td, part one of article 312.5
				Labor Code
				Russian Federation.
				Specialist OK 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 periods, organization of labor protection and dismissal. Otherwise, teleworkers are subject to general rules of the Labor Code, including regarding the granting of holidays, accounting of working time depending on its regime, 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.

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 information technologies. And in practice, the principle of remote work has been used for a long time, that's just the legal regulation for a long time did not have.

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, 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 include remote workers (Part 3, Article 3 of Federal Law No. 426-FZ of December 28, 2013 “On 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 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.

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 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

Today, the concepts of “remote work” and “remote workers” have become firmly established in everyday life. However, many issues related to the conclusion of an employment contract with remote employees and the peculiarities of their employment status, remain open.

Who is a remote worker

According to part 2 of Art. 312.1 of the Labor Code of the Russian Federation, remote workers are considered to be persons who have concluded an employment contract on remote work.

Remote work is considered to be work that meets the following criteria (part 1 of article 312.1 of the Labor Code of the Russian Federation):

The employee performs his duties outside the location of the employer (branch, representative office, other separate subdivision, including those located in another area);

Outside the stationary workplace;

Outside the territory or facility controlled by the employer;

Subject to the performance of his functions, the employee keeps in touch with the employer directly through the Internet or other public information and communication network.

Note that in this case, the employer is deprived of the opportunity to directly or indirectly control the workplace of such an employee.

Labor legislation does not establish what position an employee must hold, with whom an employment contract for remote work can be concluded. Thus, almost any employee can be made remote. Another issue is the expediency of remote work, the employer decides on his own. So, web designers, programmers working remotely, and other employees whose work does not require their presence in the office can be made remote workers.

It should be remembered that remote workers are subject to labor legislation (part 3 of article 312.1 of the Labor Code of the Russian Federation).

Note that the concept of "remote worker" is quite different from the definition of such a category of workers as "homeworkers". At first glance, these two categories of workers seem similar, but legal regulation their position is very different.

The main differences between remote workers and homeworkers are given in Table. one.

Table 1. Teleworkers and Homeworkers: Key Differences

Working conditions	homeworkers	Remote workers
Workplace organization	Workplace is at the employee's home (part 1 of article 310 of the Labor Code of the Russian Federation).	The employee does not have a clearly defined workplace. Such an employee can perform his functions both at home and in another place (for example, in a room rented by the employee himself)
The nature of the work performed	The work of homeworkers is directed, as a rule, to the production of consumer goods, the provision of certain types services to citizens and enterprises (clause 3 of the Regulations on the working conditions of homeworkers, approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions of September 29, 1981 No. 275/1799). Basically, the work of homeworkers is mechanistic in nature and involves the performance of monotonous operations.	The labor function of an employee is mainly associated with intellectual work. For its implementation, the employee, as a rule, uses a computer and the World Wide Web
Materials and tools	The employer supplies the employee with the materials and tools necessary for him to perform his labor function (part 1 of article 310 of the Labor Code of the Russian Federation). If the tools belong to the employee, the employer pays him compensation for their wear and tear (part 2 of article 310 of the Labor Code of the Russian Federation)	The employer supplies the remote worker with equipment, software and hardware, information security and other means in the manner prescribed by the employment contract. When an employee uses his own equipment, software and hardware, information security tools and other means, the employee is paid compensation in the manner determined by the employment contract (part 1 of article 312.3 of the Labor Code of the Russian Federation)
Third Party Involvement	Relatives of the homeworker may participate. At the same time, they do not have labor relations with the employer (part 1 of article 310 of the Labor Code of the Russian Federation)	The employee personally performs his labor function
Working mode	The employee independently determines the mode of work for himself	The mode of work can be established in the employment contract. But if it is not established in the contract, the employee determines it for himself independently (Article 312.4 of the Labor Code of the Russian Federation)
Electronic document management	Not provided	Widely applied

We are hiring a remote worker

When registering a remote worker for work, two situations are possible.

An employee can personally come to the employer's office, for example, in order to provide documents or sign an employment contract. In this case, his registration for work is no different from the registration of other employees.

If the employee does not have the opportunity to arrive at the location of the employer, his registration for work occurs through electronic document management. But even in this case, the procedure for registering an employee for work practically does not differ from the usual registration of employees.

Let us consider in more detail the procedure for registering a remote worker.

Documents required for concluding an employment contract

Article 65 of the Labor Code of the Russian Federation provides for a list of documents that must be provided to an employee when concluding an employment contract. Such documents are:

Passport or other identity document;

A work book, except in cases where an employment contract is concluded for the first time or an employee enters a job on a part-time basis, and also if the employee does not have a work book of the form established in the Russian Federation or the work book is missing due to its loss, damage or for another reason;

Insurance certificate of the state pension insurance, except for the case when the employment contract is concluded for the first time. Note that if an employment contract is concluded with a remote worker for the first time and by exchanging electronic documents, such an employee receives an insurance certificate independently (part 4 of article 312.2 of the Labor Code of the Russian Federation);

Documents of military registration - for persons liable for military service and persons subject to conscription for military service;

A document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training;

A certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds when applying for a job related to an activity that is not allowed for persons who have or had a criminal record, are or have been subjected to criminal prosecution.

Other documents of the Labor Code of the Russian Federation, including Chapter 49.1 of the Labor Code of the Russian Federation, are not required to be provided.

A remote worker can send the listed documents (part 3 of article 312.2 of the Labor Code of the Russian Federation):

In electronic form (for example, in the form of scanned copies sent to the employer's email address). In this case, the employer is obliged to send the employee an electronic document signed with an enhanced qualified electronic signature (hereinafter referred to as the ES), notifying of the receipt of the relevant documents (part 4 of article 312.1 of the Labor Code of the Russian Federation). Note that since the employee sends the relevant documents in electronic form, the accuracy of their copies can also be confirmed by the employee's ES;

By registered mail with acknowledgment of receipt. In this case, the copies sent to the employer must be notarized. Note that part 3 of Art. 312.2 of the Labor Code of the Russian Federation directly provides for the possibility for the employer to require the remote employee to send the specified documents by mail in the given order.

Note!

According to part 6 of Art. 312.2 of the Labor Code of the Russian Federation, information on remote work, by agreement of the parties, may not be entered in the work book of such an employee. If an employee enters work for the first time, a work book may not be issued to him. And a document about his seniority and labor activity will be a copy of the employment contract sent to the employee.

But if the employee insists on making an appropriate entry in the work book, he must provide it personally or send it to the employer by registered mail with acknowledgment of receipt (part 7 of article 312.2 of the Labor Code of the Russian Federation). We will tell you below how to fill out the work book correctly in this case.

Acquaintance with local regulations of the employer

In accordance with Part 3 of Art. 68 of the Labor Code of the Russian Federation, when hiring (before signing an employment contract), the employer is obliged, against signature, to familiarize the employee with the internal labor regulations, other local regulations (hereinafter - LNA) directly related to labor activity, the collective agreement.

When hiring a remote employee, the employer can send him such documents in electronic form (part 5 of article 312.2 of the Labor Code of the Russian Federation). In turn, the remote worker must send the employer an electronic document confirming the fact of his familiarization with the documents sent. Such a document must also be certified by an enhanced qualified ES of the employee (part 4 of article 312.1 of the Labor Code of the Russian Federation).

Registration of an employment contract

In order for an employment contract with an employee to be considered an employment contract for remote work, a number of essential conditions should be reflected in it.

Remote work condition

The obligation to indicate in the employment contract that the work is remote does not directly follow from the Labor Code of the Russian Federation. But you need to pay attention to the next point.

As a general rule, one of the mandatory conditions of an employment contract is a condition on the place of work. And in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the employment contract must indicate the place of work indicating the separate structural unit and its location (part 2 of article 57 of the Labor Code of the Russian Federation ).

The current legislation of the Russian Federation does not contain norms that directly indicate what should be understood as the place of work of remote employees and how to reflect the condition of the place of work in the employment contract concluded with these employees. But part 1 of Art. 312.1 of the Labor Code of the Russian Federation indicates that remote work is considered to be work that an employee performs outside the location of the employer, outside the stationary workplace. Note that in this case, the employment contract is not required to list all the signs of remote work.

Thus, the employment contract indicates only the fact that the work is remote.

According to Art. 57 of the Labor Code of the Russian Federation, a prerequisite included in an employment contract is a condition on the place of work. At the same time, Art. 57 of the Labor Code of the Russian Federation does not make exceptions for remote workers. From the definition of remote work given in Art. 312.1 of the Labor Code of the Russian Federation, it follows that for an employee, the place of permanent work is the place of his location (see. letter of the Ministry of Finance of Russia dated 08.08.2013 No. 03-03-06/1/31945). Based on the foregoing, this condition can be formulated as follows: “Work under this employment contract is remote. The place of work is the location of the employee, determined by the employee independently, located outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another locality), outside the stationary workplace, territory or facility, directly or indirectly under the control of the employer ".

In view of the fact that a permanent place of work for a remote employee may be a territory assigned to him, we consider it possible to indicate in the employment contract also the following wording of the place of work of a remote employee: “Work under this employment contract is remote. For the purposes of this employment contract, the permanent place of work is the territory assigned to the employee, namely: the city of _________ (as an option - the city of Moscow).

Place of conclusion of the employment contract

In the employment contract, the location of the employer is indicated as the place of conclusion of the employment contract. In this regard, the location of the organization (its head office) should be indicated as the location of the employer. This conclusion is due to the following.

According to Part 1 of Art. 312.2 of the Labor Code of the Russian Federation, the location of the employer is indicated as the place of conclusion of an employment contract on remote work. According to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of the organization is the location of its executive body. For organizations with branches and representative offices, the location will be the location of the organization itself (its head office).

However, there may be cases when an employee is hired by the head of a branch (representative office). Such powers can be granted to him on the basis of a power of attorney issued by an organization (clause 3, article 55, clause 4, article 185.1 of the Civil Code of the Russian Federation). In this case, when concluding an employment contract, it is also necessary to reflect the location of the organization (its head office) as the place of conclusion of the employment contract.

This condition of the contract can be formulated as follows: "Place of conclusion of the employment contract _______ (indicate the location of the organization)".

Deadline for confirmation of receipt of electronic documents

The next condition that must be reflected in the employment contract with a remote worker is the condition on the timing of sending confirmations in the form of electronic documents certified by the ES.

According to part 4 of Art. 312.1 of the Labor Code of the Russian Federation, the employer and the remote worker can communicate by exchanging electronic documents. In this case, both are required to use an enhanced qualified ES. Each of the parties to the employment contract, upon receipt of electronic documents from the other party, must confirm their receipt. This should be done by sending the counterparty a confirmation document in electronic form. Note that the Labor Code of the Russian Federation does not oblige the employee and the employer to sign such a document with an enhanced qualified ES. However, in order to protect the confidentiality of information, we recommend establishing such an obligation for the employee in the employment contract. The period during which such confirmation should be sent must also be fixed in the contract.

This can be done by including the following condition in the employment contract: “The party that received an electronic document from the other party via the Internet or other telecommunications network is obliged to send an electronic confirmation of receipt of such a document to the other party. The corresponding confirmation, signed with an enhanced qualified electronic signature, is sent within _______ (as an option - one working day) from the moment of its receipt.

Note that the Labor Code of the Russian Federation does not provide for the obligation of both the employee and the employer to provide such confirmations with any specific content. Only the fact of sending an electronic document to one or another party is obligatory. Thus, the employer can independently develop the content of such confirmation. At the same time, a sample of electronic confirmation can be an integral annex to the employment contract.

Condition on the technical equipment of the employee

According to part 8 of Art. 312.2 of the Labor Code of the Russian Federation, an employment contract may provide for an additional condition on the obligation of a remote worker to use equipment, software and hardware, information security tools and other means provided or recommended by the employer in the performance of his duties. Moreover, part 1 of Art. 312.3 of the Labor Code of the Russian Federation establishes that the procedure and term for providing an employee with equipment, other technical means, as well as software must be provided for in the employment contract.

At the same time, if the worker will use his equipment and software, the employer is obliged to pay him monetary compensation(Article 188, Part 1 Article 312.3 of the Labor Code of the Russian Federation). The term and procedure for paying such compensation should also be reflected in the employment contract.

If the employer intends to provide the employee with equipment, for example, the following wording is acceptable: “The employer undertakes to provide the employee with the following equipment to perform his job functions:

Personal computer ________ (specify brand and model of PC);

- ____________________________ (indicate other other equipment that the employer intends to provide to the employee, as an option, a printer, scanner, etc.).

The employer undertakes to provide the employee with the following software:

Database "Consultant Plus";

Program "1C Accounting";

- ____________________________ (indicate other other software that the employer intends to provide to the employee).

To provide the employee with the equipment and software listed in this paragraph, the employer undertakes _____________ (indicate the period during which the relevant equipment should be provided). The equipment and software listed in this paragraph is provided to the employee by ____________ (as an option, delivery to the place of residence of the employee).

If the employer wants to pay compensation to the employee for the use of equipment and software owned by the employee, the relevant condition can be formulated as follows: “The employer undertakes to pay compensation in the amount of __________ rubles on a monthly basis. for the use by the employee in the performance of his labor functions of the following equipment and software:

Personal computer ________ (specify brand and model of PC);

Mobile phone _____________ (specify brand and model mobile phone), equipped with a work number ____________ (indicate the work phone number);

- ____________________________ (specify other other equipment);

Reference legal system ________________ (specify name);

Accounting software _______________(specify name);

- ____________________________ (specify other other software for which compensation is paid).

The compensation provided for in this paragraph is paid to the employee within the following terms _______ (as an option - within the terms provided by the LNA of the employer for the payment of wages)".

The condition on the mode of work and rest of a remote worker

If the employee does not set himself a regime of working time and rest on his own, the corresponding condition must also be fixed in the employment contract (part 1 of article 312.4 of the Labor Code of the Russian Federation).

“The remote worker is set an eight-hour working day. The time of the beginning of the working day from ______, the time of the end of the working day _________.

Along with this, the employer must provide for a condition on the procedure for granting leave to the employee (part 2 of article 312.4 of the Labor Code of the Russian Federation). This condition may repeat the conditions stipulated in labor contracts with the "office" employees of the organization.

The procedure and deadline for submitting reports to the employer

According to Part 1 of Art. 312.3 of the Labor Code of the Russian Federation, an employment contract should provide for a condition on the procedure and terms for submitting reports by a remote worker to the employer. Such a condition can be formulated as follows: “The remote worker submits to the employer a weekly report on the work done. The corresponding report is submitted in electronic form ____________________ (indicate additional conditions for the provision of the report by the employee) to the e-mail address __________________, no later than __________ (as an option - 17-00 Friday of the week for which the report is provided)".

Additional grounds for dismissal

In the employment contract, the employer has the right to provide additional grounds for the dismissal of an employee at the initiative of the employer (part 1 of article 312.5 of the Labor Code of the Russian Federation).

Note that additional grounds should not be of a discriminatory nature (Article 3 of the Labor Code of the Russian Federation) and should not worsen the situation of remote workers in comparison with other categories of workers.

For example, the fact of changing his living conditions is not a basis for dismissal of an employee. Unlike a homeworker, a worker is not required to fulfill his labor functions right at home. The change of place of residence by the employee will not affect the performance of his duties. In this case, there is a high risk that the dismissed employee will achieve reinstatement, motivating his claims by the discriminatory nature of such a condition.

At the same time, the employee's systematic refusal to use information security tools provided or recommended by the employer in work can become a weighty reason for dismissal.

Additional reasons for dismissal can be such cases as:

Repeated violation by a remote worker of the deadlines for submitting reports on the work performed;

Repeated non-compliance by the employee with the deadlines for the performance of the work assigned to him or non-compliance of its results with the requirements set forth in the employment contract;

Repeated violation of the deadlines for confirmation by a remote worker of the fact of receipt of documents in electronic form.

It is not enough for the employer to simply provide the appropriate grounds in the employment contract. It is necessary to develop and consolidate in the LNA (internal labor regulations) a procedure for establishing the fact of such violations.

Thus, the fact that an employee refuses to use the means of information protection provided to him must be documented. This can be done, for example, by drawing up a memorandum by a technical specialist, on the basis of which an act is drawn up on the corresponding violation.

Condition for filling out a work book

By agreement of the parties, the work book may not be filled out (part 6 of article 312.2 of the Labor Code of the Russian Federation). This condition can be reflected in the employment contract as follows: “Information about the employee, the work performed by him, transfers to another permanent job and dismissal of the employee, as well as the grounds for terminating the employment contract and information about awards for success in work, are not entered in the work book of the employee ".

Privacy Statement

The employment contract may provide for the procedure for the employee to use information security tools in accordance with the recommendations of the employer (part 8 of article 312.2 of the Labor Code of the Russian Federation).

The Labor Code of the Russian Federation does not specify what is meant by information security tools provided or recommended by the employer.

According to Art. 2 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets”, information security tools are technical, cryptographic, software and other tools designed to protect information constituting a state secret, the means in which they are implemented, as well as control tools effectiveness of information protection. We believe that this definition can also be applied to cases of concluding an employment contract with a remote worker.

For example, a means of protecting information can be an coding system for electronic documents developed by the employer.

Note that the Labor Code of the Russian Federation does not force the employer to apply such remedies in without fail. The employer himself determines the level of secrecy of the information that he intends to exchange with a remote worker. If the information contains information classified by the employer as a trade secret, it is more expedient to protect it.

The employer can independently develop such protective equipment (with the help of its employees or by order of a third-party organization) or use ready-made protective equipment by purchasing them from a specialized organization.

In any case, the obligation of the employee to use such means should be fixed in the employment contract. This condition can be formulated as follows: “In the performance of his labor duties, the employee is obliged to use the following information protection tools provided by the employer:

- _____________________ (indicate the name of the information security tool).

These information security tools are used by the employee in accordance with the instructions for their use provided by the employer and which is an integral annex to this agreement.

Conclusion of an employment contract

A remote worker is the only employee with whom an employment contract can be concluded by exchanging electronic documents, as follows from the provisions of Art. 312.2 of the Labor Code of the Russian Federation. Similarly, agreements are concluded on changing the employment contract.

Important: to conclude an agreement, simply exchanging electronic documents is not enough. The employer, no later than three calendar days from the date of conclusion of such an employment contract, is obliged to send to the employee by registered mail with notification a duly executed copy of this employment contract on paper (part 2 of article 312.2 of the Labor Code of the Russian Federation).

In this regard, we note the following.

Part 2 Art. 312.2 of the Labor Code of the Russian Federation says that the employer is obliged to send the employee one copy of the employment contract by mail. This copy must be signed by the employer and properly executed. At the same time, the Labor Code of the Russian Federation does not impose on the remote worker the obligation to send the employer an employment contract with his signature. From the analysis of Art. 312.2 of the Labor Code of the Russian Federation, it can be concluded that in order to conclude an employment contract on the part of an employee, it is enough just to exchange electronic documents signed by an enhanced qualified ES of the employee and send an electronic confirmation to the employer that the documents sent to him via the Network have been received. The employee is not required to send a paper copy of the employment contract signed by the employee himself to the employer.

The employer himself should not send the employee two signed copies of the contract and wait for the return of one of them. He may consider his obligation to send the contract in paper form fulfilled from the moment he receives notification of the delivery of the relevant correspondence to the employee against signature.

The order of acceptance to work

The employee should be familiarized with the order for employment against signature (part 2 of article 68 of the Labor Code of the Russian Federation). The corresponding order in electronic form, signed by the enhanced qualified ES of the employer, must be sent to the employee.

The fact that an employee received an order will be indicated by an electronic notification from an employee with an enhanced qualified ES.

After reviewing the order, the employee must also sign it with his enhanced qualified ES and send it to the employer.

The receipt by the employer of the order signed by the employee will be indicated by an electronic notification received by the remote worker. Relevant conclusions can be drawn from the analysis of Part 4 of Art. 312.1 of the Labor Code of the Russian Federation.

Personal card

The personal card of a remote worker is filled out in the same manner as when hiring a regular employee. The norms of the Labor Code of the Russian Federation do not provide for any features regulating the procedure for filling it out.

Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1 form No. T-2 "Personal card of the employee" was approved. Note that from January 1, 2013, the use of this form is not mandatory. However, the employer has the right to use this form when hiring employees.

Note that the unified form of a personal card provides for the signature of the employee when it is issued. If a remote worker is hired, the employer should send the completed personal card to such employee in electronic form. The employee must sign it with his enhanced qualified ES and send it back to the employer. Note that the corresponding execution should also be accompanied by the exchange of electronic notifications about the receipt of an electronic document between the employee and the employer (part 4 of article 312.1 of the Labor Code of the Russian Federation).

Employment history

Unless otherwise provided by the employment contract with the employee, the employer is obliged to make an appropriate entry in the employee's work book.

The form, procedure for maintaining and storing work books of employees, as well as the procedure for filling them out are established by the following regulatory legal acts:

- Decree of the Government of the Russian Federation of April 16, 2003 No. 225"On work books";

Order of the Ministry of Finance of Russia dated December 22, 2003 No. 117n “On work books”;

- Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69"On the approval of the Instructions for filling out work books."

The introduction of new norms in the Labor Code of the Russian Federation regulating the legal status of remote workers did not entail changes in the relevant documents.

Thus, the work book of a remote worker is filled out in the same order as the work book of an “office” worker.

An example of filling out a work book for a remote worker is given in Table. 2.

Table 2. An example of filling out a work book for a remote worker

record number	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
Information about the work of TK No. 0000001
record number
	Society with limited liability"Romashka" (LLC "Romashka")
	Joined the engineering department as a system administrator	Order dated 04/20/2017 No. 13/09

Time sheet

The remote worker is included in staffing organizations along with other employees. As in the case of other employees, the employer is obliged to ensure that the working time of such an employee is recorded (Article 91 of the Labor Code of the Russian Federation). But according to part 1 of Art. 312.4 of the Labor Code of the Russian Federation, unless otherwise provided by the employment contract on remote work, the mode of working time and rest time of the remote worker is established by him at his discretion.

The question arises of how to keep track of working hours in this case?

The competent authorities do not comment on this situation. However, in our opinion, in this case, in the time sheet on weekdays, a mark of presence (“I” or “01”) is put down, on weekends and non-working holidays - a mark of rest (“B” or “26”) . The number of hours worked is set in accordance with the terms of the employment contract.