Can a remote worker work in the office? Remote workers: what an accountant needs to know. The most important conditions of an employment contract for remote work

Telecommuting, or remote access work as it is called, is becoming more and more popular. There is no doubt that this mode of operation is convenient for both the employee and the employer. However, since remote work has not been around for very long, employers make mistakes in establishing it, regulating it, or dismissing it. Who can be set this mode of operation? How to do it? How is the interaction between the employee and the employer? On what grounds can a remote worker be fired? You will find answers to these and other questions in the article.

The essence of remote work

By virtue of Art. 312.1 of the Labor Code of the Russian Federation remote work is the performance of a labor function defined by the employment contract:

Outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another area);

Outside a fixed workplace, territory or facility directly or indirectly under the control of the employer.

The condition of remote work is the use of public information and telecommunication networks, including the Internet, for the performance of a labor function and for interaction between the employer and the employee on issues related to its implementation.

Remote workers are persons who have concluded an employment contract for remote work. They are subject to labor legislation and other acts containing norms labor law, taking into account the features established ch. 49.1 of the Labor Code of the Russian Federation.

Do not confuse remote work with home work. According to Art. 310 of the Labor Code of the Russian Federation homeworkers are persons who have concluded an employment contract on the performance of work at home from materials and using tools and mechanisms provided by the employer or purchased by the homeworker at his own expense. The result of home work is a certain product, and the result of remote work is information, information, intellectual property.

Remote workers can be, for example, programmers, editors, accountants, teachers, lawyers. That is, those who carry out certain work at home or in another place that is not under the control of the employer, but interacts with him through the "Internet".

However, some employers make remote work wrong. For example, an employer entered into a fixed-term employment contract for remote work with a highly qualified foreign specialist for the position of a brand chef, whose actual place of work was a restaurant 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 (most recently in Letter dated 16.01.2017 No. 14 -2/OOG-245) expressed the opinion that the labor legislation at the moment does not provide for the possibility 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 employment contract under such conditions violates the Labor Code of the Russian Federation. In particular, the employer will not be able to fulfill its obligations to provide remote workers with safe working conditions and its protection ( Part 2 Art. 312.3Labor Code of the Russian Federation) due to the fact that federal laws and other regulatory legal acts of the Russian Federation that form labor legislation are valid only on the territory of our country ( Part 1 Art. thirteenLabor Code of the Russian Federation). It is recommended to conclude civil law contracts with such citizens.

Therefore, before registering an employee remotely, think carefully about whether the work performed falls under the definition of remote work.

Making a remote reception

A remote worker is hired according to the general rules provided for Art. 68Labor Code of the Russian Federation, but subject to the requirements ch. 49.1Labor Code of the Russian Federation and Federal Law No. 06.04.2011 63 ‑FZ “On Electronic Signature”(Further - Law no. 63 ‑FZ).

An employment contract on remote work and agreements on changing the terms of this contract determined by the parties may be concluded by exchanging electronic documents ( Part 1 Art. 312.2 of the Labor Code of the Russian Federation). In this case, both the employee and the employer must use enhanced qualified electronic signatures in the manner prescribed by Law No. 63 ‑ FZ.

Despite the conclusion of an electronic employment contract, the legislation establishes the requirement for the availability of a paper form of the contract. The employer, within three calendar days from the date of conclusion of this agreement, is obliged to send to the remote worker by registered mail with notification a duly executed copy of this agreement on paper.

It follows from this provision that the employer sends a copy of the employment contract signed by him to the employee. For the employee, however, there is no obligation to send the employer by mail a second, signed copy with his own hand.

Before concluding an employment contract, a remote worker must submit the documents listed in Art. 65 of the Labor Code of the Russian Federation. How does this happen?

V article 312.2 of the Labor Code of the Russian Federation it was established that when concluding an employment contract on remote work by exchanging electronic documents, the documents provided for Art. 65 of the Labor Code of the Russian Federation, can be presented to the employer by a person applying for remote work in electronic form. At the request of the employer, this person is obliged to send to him, by registered mail with notification, notarized copies of these documents on paper.

If such an agreement is entered into by a person for the first time, he/she shall obtain an insurance certificate of compulsory pension insurance independently.

In addition, there are features in the design of the work book. In particular, by agreement of the parties to the employment contract on remote work, information about it may not be entered in the work book of the employee, and when concluding an employment contract for the first time, the work book may not be drawn up at all.

Thus, if no entries are made in the work book about the work of a remote worker, the main document about his labor activity confirming the seniority, for him there will be an employment contract on remote work.

If an employee wants an entry about his remote work to be entered in the work book, he must hand it over to the employer in person or send it by registered mail with notification.

Since there is no provision for making an entry in the work book about the remote nature of work instructionfilling out work books approved Decree of the Ministry of Labor of the Russian Federation dated 10.10.2003 No. 69 , employment record is made according to the general rules.

Like ordinary workers, remote workers must be familiarized with the documents provided for before concluding an employment contract. Part 3 Art. 68 Labor Code of the Russian Federation(with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement). Such familiarization can also be carried out by exchanging electronic documents.

Based on the employment contract, the employer issues an order for admission to remote work. It is drawn up in the same way as when receiving other employees of the organization. At the same time, in the column “Conditions for employment, nature of work” indicate: “Remote work”.

If the interaction between the employee and the employer is carried out by exchanging electronic documents with digital signatures, then you can familiarize the employee with the order for employment in the same way ( Part 5 Art. 312.1Labor Code of the Russian Federation).

Labor contract

First of all, we note that the type of work must be indicated in the employment contract - remote ( Art. 312.2Labor Code of the Russian Federation). For instance:

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";

The mode of working time and rest time, etc. The mode of operation can be set the same as for all employees of the organization, but it may differ;

The remote worker has the right to determine the mode of working time and rest time independently, unless otherwise provided in the employment contract (part 1 of article 312.4 of the Labor Code of the Russian Federation).

Terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). Here, be sure to indicate the form of salary payment - transfer to a bank card ( Art. 136 Labor Code of the Russian Federation).

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

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

On the procedure for making entries in the work book ( Part 6 Art. 312.2);

On the procedure and terms for providing the employee with the equipment necessary for the performance of labor duties, other technical means, as well as software in accordance with the requirements of the employer ( Part 8 Art. 312.2). For instance:

The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation necessary for the employee to perform his job duties within ______________.

If this duty is assigned to the employee, the condition may be as follows:

The employee independently provides himself with a computer, printer, fax, telephone, means of access to the Internet.

On the procedure for the employee to use information security tools in accordance with the recommendations of the employer ( Part 8 Art. 312.2);

On the procedure and terms for reimbursement to the employee of expenses related to remote work, if, under the terms of the contract, he uses equipment and other software and hardware belonging to him or rented ( Art. 188,Part 1 Art. 312.3 of the Labor Code of the Russian Federation). At the same time, it is advisable to clearly state in the contract exactly what expenses are subject to reimbursement, what documents they must be confirmed with, etc.;

On the procedure and timing and form of submission by the employee of reports on the work performed ( Part 1 Art. 312.3).

In addition, you can specify additional grounds for terminating the employment contract at the initiative of the employer ( Part 1 Art. 312.5 of the Labor Code of the Russian Federation).

Nuances of remote work

Since communication between the employer and the remote worker during work is carried out via electronic communication, it is assumed that both the employee and the employer send any documents in electronic form. But in Art. 312.1 of the Labor Code of the Russian Federation it is clarified that such documents, in addition to the employment contract, orders, notifications and other documents, in particular, are statements, explanations and other information from the employee. It was also established that if an employee sent such a document as an application for the issuance of duly certified copies of documents related to work ( Art. 62Labor Code of the Russian Federation), the employer, no later than three working days from the date of filing the said application, is obliged to send copies to the remote worker by registered mail with notification or, if indicated in the application, in the form of an electronic document.

If an employee falls ill or is going on maternity or parental leave, he must send the employer the originals of the relevant documents (disability certificate, application, etc.) by registered mail with notification (Article 312.1 of the Labor Code of the Russian Federation).

Separate attention is paid to the employer's compliance with labor protection standards in relation to remote workers.

By virtue of Art. 312.3 of the Labor Code of the Russian Federation in order to ensure safe conditions and labor protection for remote workers, the employer performs only some of the obligations established by Art. 212 of the Labor Code of the Russian Federation, in particular:

Investigation and accounting in accordance with the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation in the order of accidents at work and occupational diseases ( par. 5 pm 2);

Fulfillment of prescriptions officials federal executive body authorized to carry out the 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 bodies within the time limits established by the Labor Code of the Russian Federation, other federal laws ( par. 20 hours 2);

Compulsory social insurance of workers against accidents at work and occupational diseases ( par. 9 pm 2).

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

Other obligations of the employer to ensure safe 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.

Features upon dismissal

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

By general rule an employment contract with such employees can be terminated on the grounds established by the Labor Code. At the same time, the employment contract may provide additional grounds for the dismissal of a remote worker at the initiative of the employer ( Part 1 Art. 312.5Labor Code of the Russian Federation). For example, dismissal for repeated non-fulfillment of planned indicators, for regular non-compliance with the format of the report on the completed task.

Note: additional grounds for dismissal should be established precisely by the employment contract. If they are established not by an employment contract, but by another document, for example job description or a local act of the organization, the dismissed person will be reinstated.

For example, a remote worker fired for repeated failure to meet planned targets was reinstated by the court, since such an additional ground for dismissal was provided not by the employment contract, but by the job description. The employer considered that it was an integral part of the employment contract.

However, the court concluded: job descriptions, taking into account their content, the procedure for adoption, form, terms of approval by the employer, the procedure for familiarizing the employee with them, cannot be qualified as an integral part of the employment contract concluded by the parties and do not meet the requirements Art. 56 Labor Code of the Russian Federation(are not an agreement of the parties), so dismissal according to the rules Part 1 Art. 312.5. Labor Code of the Russian Federation, providing for the right of the employer to dismiss a remote worker on additional grounds agreed upon by the parties, prescribed exclusively in the employment contract, illegally ( The appeal ruling of the Sverdlovsk Regional Court dated May 11, 2017 in case No. 33 ‑7310/2017 ).

The job description will be an integral part of the employment contract if, in accordance with this contract, it is an annex to it. However, in any case, it becomes mandatory only in part official duties and requirements for the worker. If the 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.

The termination of labor relations with a remote worker is formalized by an order (unified form T-8), the basis of which should be a specific provision of the contract or article of the Labor Code of the Russian Federation. The employee must be familiarized with the order under the signature. If this document cannot be brought to the attention of the employee or he refuses to familiarize himself with it under the signature, an appropriate entry is made in the order (instruction).

If the interaction between the employer and the remote worker is carried out by exchanging electronic documents using enhanced qualified electronic signatures, the dismissal order must be sent to the employee in advance in electronic form for review. The employee, in turn, having assured the order with an electronic signature, is obliged to send it back.

On the day of dismissal, a paper copy of the order must be sent to the employee by registered mail with notification ( Part 2 Art. 312.5Labor Code of the Russian Federation).

On the basis of the order, if the work book of the employee was filled out, an entry is made in it about the dismissal. Here is a sample entry for dismissal on an additional basis established by the employment contract.

We examined the features of remote work - in particular, those related to hiring, execution of an employment contract, working hours and rest time, organization of labor protection and dismissal. Otherwise, remote workers are subject to the general norms of the Labor Code, including those regarding the granting of holidays, accounting for working hours depending on its mode, etc.

And of course, it is not necessary to hire new employees for remote work - you can also transfer existing ones. But such a transfer is carried out only by agreement of the parties. Unilaterally, at the initiative of the employer, it is possible only if there are good reasons.

The employee is registered for remote work without creating a stationary workplace, the work is performed at the home address. As of today, the Employee has disappeared and is not performing his duties. Is it possible in this case to put "nn" in the time sheet and what should the employer do in this case?

Answer

Federal Law No. 60-FZ of April 5, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” finally gave the definition and conditions for remote work, established the rules and features for hiring remote workers, concluding an employment contract with them, etc. .

So, a new chapter 49.1 has now been introduced into the Labor Code of the Russian Federation, devoted to the peculiarities of regulating the work of remote workers.

A remote worker is a convenience for both the specialist and the employer. The employer wins due to the fact that it is not necessary to create and equip a workplace, to compensate for the costs of travel, food, accommodation, because a remote worker can work not only outside the employer's location, but also outside the state.

At the same time, the rule still applies, according to which the employee carries out labor activities at the location of the employer (its branch, representative office). Of course, the implementation of labor activities outside the office was provided earlier - for homeworkers. However, Chapter 49 of the Labor Code of the Russian Federation “Peculiarities of regulating the work of homeworkers” applies to labor activities of an industrial nature, since a homeworker is precisely a worker, one who works with his hands - “a person who has concluded an employment contract on 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”(Article 310 of the Labor Code of the Russian Federation).

Therefore, the registration, for example, of a lawyer as a home worker did not find understanding with the courts.

As a rule, knowledge workers were registered under a civil law contract, and, as a result, neither the employee nor the employer could use all the legal mechanisms established by the Labor Code of the Russian Federation.

So what is remote work? This 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);
• stationary workplace, territory or facility, directly or indirectly under the control of the employer, -

subject to the use for the performance of this labor function and for the implementation of interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet (Article 312.1 of the Labor Code of the Russian Federation).

Homeworker or remote worker?

The main difference is in the product of labor:

• a homeworker is, as a general rule, a production worker. The product of his labor has a material form;
• a remote employee performs work, the result of which may not have such a form, i.e. this work is not related to production.

The next difference is the workplace:

• the homeworker's workplace is the concern of the employer. If necessary, it is the employer who must obtain, for example, permission from the fire or sanitary and epidemiological supervision;
• The remote worker takes care of his own workplace. And in general, he can work not only at home, but in general anywhere, even in another country.

The homeworker, if such a requirement is established, is required to undergo a medical examination. A remote employee does not need a medical examination.

An employment contract is drawn up with a homeworker in paper form. For a remote employee, the contract can be drawn up both in paper and in electronic form. To terminate the employment contract, the presence of a homeworker is mandatory. Termination of an employment contract with a remote employee can also be executed electronically. An entry about home work in the work book is made mandatory, about remote work - at the request of the employee.

The homeworker determines the mode of work independently, the mode of work for a remote employee can be stipulated in the employment contract. Hence one more difference: overtime work of a homeworker is not subject to payment, remote work can be paid.

Documenting

A fundamentally new form of communication between an employee and an employer has been established - the exchange of electronic documents.

Each of the parties must send confirmation of receipt of an electronic document from the other party within the period specified in the employment contract for remote work.

Important note: for the full implementation of such an exchange, the parties to the employment contract will have to receive an enhanced qualified electronic signature.

How is an employment contract for remote work concluded?

The law established a simplified procedure for concluding such an employment contract: it is signed by exchanging electronic documents. However, this does not relieve the employer from the obligation to send the employee a properly executed copy of the contract on paper.

Also, the employer has the right not to draw up a work book for a remote worker or not to make an entry about remote work in it, if the employee himself does not object. That is, it is permissible, but only by agreement of the parties.

If an employment contract is concluded by a citizen for the first time, then the citizen himself must obtain a certificate of state pension insurance.

A remote worker, just like an office worker, must be familiar with the local regulations, orders, notices and requirements of the employer. This familiarization is also carried out by exchanging electronic documents.

It is obvious that the remote worker independently determines the mode of working time and rest time (other may be provided for by the employment contract on remote work, but the possibilities of control, as we understand, are very limited in this case).

Consider the wording that it is advisable to include in an employment contract with a remote employee.

An indication of the nature of the work may look like this: "The employee performs the performance of a labor function outside the location of the employer (remotely)".

The place of work may be the address where the work (services) will be performed. But remember, you can work remotely anywhere.

An indication of the mode of operation is, as a general rule, mandatory (Article 57 of the Labor Code of the Russian Federation). Remote workers distribute working time and rest time at their discretion, and otherwise may be provided for in the employment contract.

If you need constant interaction with a remote employee, then you should choose the option in which the working hours are determined by the employer. That is, write it like this: “The employee is set the normal working time - 40 hours a week, five days work week with two days off - Saturday and Sunday, the duration of daily work is 8 hours.

If constant interaction is not required, then it can be established that the employee distributes working time and rest time at his own discretion.

The subordination of an employee to the internal labor regulations of an organization is one of the signs of labor relations (Article 15 of the Labor Code of the Russian Federation). However, if the employment contract states that the employee independently distributes his working time and rest time, then the indication of compliance with these rules turns into a fiction. It is much more logical to point out that “the internal labor regulations apply to the employee in that part that does not contradict the essence of the employment contract concluded with him on remote work.”

If, by agreement, the employee provides himself with equipment and resources, then the wording may be as follows: “The employee independently provides himself with a computer, telephone and the Internet.” In this case, it is logical to establish compensation for expenses, the amount and timing of payment.

If all of the above is the concern of the employer, then it can be formulated as follows: “The employer, before (specify), undertakes to provide the employee with a computer, telephone, and ensure the availability of an Internet connection.” The contract should establish the deadlines for the delivery of work and the method of its delivery (by e-mail).

Transfer to remote work

In this case, it is required to draw up an additional agreement on changing the nature of labor. For example, if the accountant will work remotely for the period of parental leave, then the following wording should be included in this additional agreement:

“The employee works at his place of residence at the address: Moscow Region, Dmitrov, st. Lyra Nikolskaya, 3";

“While on parental leave, the Employee performs the labor function remotely”;

“The employee independently provides himself with equipment: a computer, the Internet, telephone communications”;

“The employer undertakes:

- provide the information necessary for the performance of the labor function by sending an email to the Employee at [email protected] mail.ru;

- reimburse the expenses of the Employee related to the performance of his labor function, namely to compensate for the costs of paying bills for the Internet and mobile phone, for using a personal computer for official purposes in the amount of (specify) rubles. per month no later than (specify which) day of each month.

Entry in the work book

If the employee does not want an entry about remote work in his work book, then the following statement should be taken from him:

“I, Klimova Maria Afanasyevna, who has been working at Dobry Barin LLC as an accountant since May 29, 2013, please do not enter data about this in my work book.”

The fact that Ms. Klimova worked as an accountant in this LLC will be confirmed by copies of the employment contract and the dismissal order.

Payment Considerations

A remote worker may be entitled to the following benefits:

• salary;
• guarantees and compensations due to all employees under the norms of labor legislation, legislation on social insurance;
• compensation for the use of personal property for official purposes.

When remuneration, piecework or time-based form can be applied.

If the employee himself sets the mode of work, then it is logical to give preference to the piecework form (payment upon completion of the task).

If the employee works in the mode established by the employer, then it is more logical to establish a time-based wage system for him, determine the salary, the procedure for calculating additional payments and allowances in proportion to the time worked.

The provision on bonuses may apply to remote workers, regardless of the chosen system of remuneration for their work.

If the terms of the employment contract stipulate that the employee himself sets the mode of his work, then there can be no talk of overtime, just as the norms of the Labor Code of the Russian Federation on increased pay for overtime and night work and work on weekends and non-working days should not be applied. holidays.

If the employer sets the mode of operation, then the provisions of Articles 152-154 of the Labor Code of the Russian Federation will apply to remote workers.

If remote workers use their own equipment for work, then it is logical to pay them compensation, the amount and procedure for payment of which should be specified in the employment contract.

When determining the amount of compensation, one can proceed from the Classification of fixed assets included in depreciation groups (approved by Decree of the Government of the Russian Federation of 01.01.02 No. 1).

In accounting, the amount of compensation is attributed to expenses for ordinary activities (clause 5 of PBU 10/99).

Other expenses of the employee related to the performance of remote work may be reimbursed in the amount of expenses actually paid by him.

Dismissal

According to Article 312.5 of the Labor Code of the Russian Federation, the termination of an employment contract on remote work at the initiative of the employer is carried out on the grounds provided for by the employment contract.

Familiarization of a remote worker with an order (instruction) on dismissal, submission by an employee of an application for issuing copies of documents related to work, can also be done electronically using an electronic signature.

On the day of termination of the employment contract concluded in electronic form, the employer will have to send the employee a certified copy of the order (instruction) of the employer to terminate the employment contract.

This will need to be done by certified mail with notification.

IMPORTANT:

Signs of remote work are as follows:

• the labor function is performed outside the territory directly or indirectly controlled by the employer;
• communication between the employee and the employer is carried out, including through the Internet.

By agreement of the parties, the employment contract on remote work determines:

• the procedure for making entries in the work book;
• the procedure for using equipment or software by a remote worker in the performance of work duties in accordance with the requirements of the employer;
• deadlines for submitting reports on the work performed;
• the procedure for reimbursement of expenses associated with remote work.

The employer is obliged to keep records of the time actually worked by each employee (part 4 of article 91 of the Labor Code of the Russian Federation). This means that he is not relieved of the obligation to keep a time sheet for a remote employee. With this option, the time sheet can be filled out as follows: on weekdays, a mark of presence (“I” or “01”) is affixed, on weekends and non-working holidays - a mark of rest (“B” or “26”). The number of hours worked - according to the employment contract.

Remote workers are entitled to all guarantees and compensations provided for by labor legislation and social insurance legislation.

Samvel MOVTESYAN, expert of Correct Solution Coaching LLC

For different categories of employees, in order to protect their interests, labor legislation establishes a certain procedure for organizing activities. Currently, remote work is quite popular, which allows you to perform labor functions without being tied to the workplace, while receiving a monetary reward. Consider the features of the regulation of the work of remote workers, established by domestic law.

Remote work: Labor Code

Before considering the nuances established by law for employers who use remote work in their activities, it is necessary to clarify what remote work means in principle.

The requirements set out in Art. 312.1 of the Labor Code of the Russian Federation, remote work according to the Labor Code of the Russian Federation implies the fulfillment of specific professional duties by an employee separately from the location of his employer, his departments, branches, stationary workplaces of the company, via the Internet.

Features of regulation of work of homeworkers

Chapter 49 of the Labor Code of the Russian Federation is devoted to the issue of regulating the work of remote workers, which reveals the main aspects of the interaction between staff and the employer, if the labor functions established by the contract are performed outside the territory of the company.

The basis for building professional relationships between staff and the company when working remotely is an agreement on remote work (Article 312.1 of the Labor Code of the Russian Federation).

The regulations set out in Art. 312.2 of the Labor Code of the Russian Federation, it is determined that if a person works in a company remotely, an employment contract can be signed electronically. Nevertheless, despite this possibility, the manager must still send the original contract in paper format by mail within three days after signing the document. The package of documents required for employment, named in Art. 65 of the Labor Code of the Russian Federation, should also initially be sent using electronic communication channels. However, the employer has the right to require certified copies of them, which must also be sent by registered mail with acknowledgment of receipt.

Given the fact that the transfer of the necessary data between a remote employee and his employer is in most cases carried out in electronic format, Art. 312.1 of the Labor Code of the Russian Federation provides for the use of enhanced qualified digital signatures for the purpose of protecting transmitted information.

The conclusion of an agreement on remote work provides a remote employee with a certain set of rights and obligations. In particular, the employer needs to provide the employee with benefits for temporary disability and in connection with motherhood. The originals of the documents required for this purpose must be sent by the remote employee using postal services.

Art. 312.2 of the Labor Code of the Russian Federation provides an opportunity not to indicate information about employment in the employee's work book. Accordingly, the employee has the right to independently decide whether he needs an entry in the labor or not. If by agreement of the parties it is determined that information about remote work is not entered in the book, data on length of service and labor activity will be confirmed by the existence of an employment contract. If a mark on employment is nevertheless made, the work book is sent to the employer by mail.

Taking into account the fact that remote work is carried out geographically isolated from the location of the employer, the employee has the right to independently determine the optimal mode of work for himself (Article 312.4 of the Labor Code of the Russian Federation). If necessary, other conditions may be established by the provisions of the signed contract. Working remotely implies that the employee is also entitled to receive annual leave in accordance with the conditions specified in the contract.

Remote work of the Labor Code of the Russian Federation: termination of the contract

Termination of the contract can be carried out both at the initiative of the employee and at the request of the employer on the basis of the reasons specified in the contract. Dismissing a remote worker is a standard set of actions. The requirements of Art. 312.5 of the Labor Code of the Russian Federation establishes that the order of the head to dismiss must be sent to a remote employee via electronic communication channels for the purpose of familiarization. The original document in paper format is sent to the employee by registered mail on the day the contract is terminated.

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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.

For your information:

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 carry out certain work at home or in another place that is not under the control of the employer, but interacts with him through the "Internet".

However, some employers make remote work wrong. For example, an employer entered into 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 has repeatedly (the last time in Letter No. 14-2 / ​​OOG-245 dated January 16, 2017) expressed the opinion that labor legislation currently does not provide for the employer the opportunity to conclude an employment contract on remote work with a citizen of the Russian Federation, a foreign citizen or by a stateless person if he works outside the Russian Federation, since the conclusion of an employment contract on such conditions violates the Labor Code of the Russian Federation. In particular, the employer will not be able to fulfill its obligations to provide remote workers with safe working conditions and its protection (Part 2 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 apply only to 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 No. 63-FZ of April 6, 2011 “On Electronic Signature” (hereinafter referred to as 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. The employer, within three calendar days from the date of conclusion of this agreement, is obliged to send to the remote worker by registered mail with notification a duly executed copy of this agreement on paper.

It follows from this provision that the employer sends a copy of the employment contract signed by him to the employee. For the employee, however, there is no obligation to send the employer by mail a second, signed copy with his own hand.

Before concluding an employment contract, a remote worker must submit the documents listed in Art. 65 of the Labor Code of the Russian Federation. How does this happen?

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 to him, by registered mail with notification, notarized copies of these documents on paper.

If such an agreement is entered into by a person for the first time, he/she shall obtain an insurance certificate of compulsory pension insurance independently.

In addition, there are features in the design of the work book. In particular, by agreement of the parties to the employment contract on remote work, information about it may not be entered in the work book of the employee, and when concluding an employment contract for the first time, 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.

For your information:

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 the work activity of an employee, a 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 instance:

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).

• conditions of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). Here, be sure to indicate the form of salary payment - transfer to a bank card (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 the receipt of an electronic document from the other party (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 instance:

The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation necessary for the employee to perform his job duties within ______________.

If this duty is assigned to the employee, the condition may be as follows:

The employee independently provides himself with a computer, printer, fax, telephone, means of access to the Internet.

on the procedure for the employee to use information security tools in accordance with the recommendations of the employer (part 8 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 for remote workers, the employer performs only some of the obligations established by Art. 212 of the Labor Code of the Russian Federation, in particular:

investigation and accounting, in accordance with the procedure established by the Labor Code, other federal laws and other regulatory legal acts of the Russian Federation, of 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 conditions and labor protection, established by the Labor Code, federal laws, other regulatory legal acts of the Russian Federation and constituent entities of the Russian Federation, do not apply to remote workers, unless otherwise provided by an employment contract on remote work.

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-fulfillment of planned indicators, for regular non-compliance with the format of the report on the completed task.

Note: additional grounds for dismissal should be established precisely by the employment contract. If they are established not by an employment contract, but by another document, for example, a job description or a local act of the organization, the dismissed person will be reinstated.

For example, a remote worker fired for repeated failure to meet planned targets was reinstated by the court, since such an additional ground for dismissal was provided not by the employment contract, but by the job description. The employer considered that it was an integral part of the employment contract. However, the court concluded: job descriptions, taking into account their content, 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 terms of job duties and requirements for the employee. 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.

The termination of labor relations with a remote worker is formalized by an order (unified form T-8), the basis of which should be a specific provision of the contract or article of the Labor Code of the Russian Federation. The employee must be familiarized with the order under the signature. If this document cannot be brought to the attention of the employee or he refuses to familiarize himself with it under the signature, an appropriate entry is made in the order (instruction).

If the interaction between the employer and the remote worker is carried out by exchanging electronic documents using enhanced qualified electronic signatures, the dismissal order must be sent to the employee in advance in electronic form for review. The employee, in turn, having assured the order with an electronic signature, is obliged to send it back.

On the day of dismissal, a paper copy of the order must be sent to the employee by registered mail with notification (part 2 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.

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. For the rest, remote workers are subject to the general norms of the Labor Code, including those regarding the granting of holidays, recording working hours depending on its mode, etc.

And of course, it is not necessary to hire new employees for remote work - you can also transfer existing ones. But such a transfer is carried out only by agreement of the parties. Unilaterally, at the initiative of the employer, it is possible only if there are good reasons.