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 certain employment contract labor function:

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 allocated by the employer or purchased by the homeworker at his own expense. The result of home work is a certain product, and the result of remote work is information, information, intellectual property.

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

However, some employers make remote work wrong. For example, an employer entered into a fixed-term employment contract for remote work with a highly qualified foreign specialist for the position of a brand chef, whose actual place of work was a restaurant on the territory of another republic (see above). The appeal ruling of the Moscow City Court dated July 18, 2017 in case No. 33 ‑22475/2017 ). The question of whether this work is considered remote was not raised during the consideration of the case. However, I would like to emphasize that in this case a regular employment contract must be concluded, according to which the workplace is a structural unit located in another locality, but controlled by the employer.

In addition, the Ministry of Labor repeatedly ( last time in Letter dated 16.01.2017 No. 14 -2/OOG-245) expressed the opinion that the labor legislation in this moment it is not possible 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 its obligations to provide remote workers without hazardous conditions labor and its protection Part 2 Art. 312.3Labor Code of the Russian Federation) due to the fact that federal laws and other regulatory legal acts of the Russian Federation that form labor legislation are valid only on the territory of our country ( Part 1 Art. 13Labor Code of the Russian Federation). It is recommended to conclude civil law contracts with such citizens.

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

Making a remote reception

A remote worker is hired according to the general rules provided for Art. 68Labor Code of the Russian Federation, but subject to the requirements ch. 49.1Labor Code of the Russian Federation and federal law dated 04/06/2011 No. 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. 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?

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

If such an agreement is concluded by a person for the first time, he receives an insurance certificate of mandatory pension insurance on one's own.

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

Thus, if no entries have been made in the work book about the work of a remote worker, the main document on his work activity, confirming the length of service, for him 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 internal labor regulations, other local regulations, directly related to labor activity worker, collective agreement). Such familiarization can also be carried out by exchanging electronic documents.

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

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

Labor contract

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

The employee performs 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 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 receipt electronic document from the other side ( Art. 312.1 of the Labor Code of the Russian Federation).

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

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

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

The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation necessary for the 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 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 submission said statement 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 instructions of officials of the federal body executive power 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 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.

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 Art. 312.5Labor 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 a local act of the organization, the dismissed person 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, 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 ( Sverdlovsky's appeal ruling regional court dated 05/11/2017 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.

Termination labor relations with a remote worker is issued by order ( unified form T-8), the basis of which should be indicated specific provision agreements or articles 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 Art. 312.5Labor Code of the Russian Federation).

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

records

the date

Information on hiring, transfer to another permanent job, qualifications, dismissal (with reasons and a link to the article, paragraph of the law)

Name, date and number of the document on the basis of which the entry was made

In the article, we will consider the pros and cons of remote work for both the employee and the employer, as well as the nuances of hiring remote employees and terminating the employment contract with them. You will learn about what documents should be issued, how the employee and the employer interact, and about other features of remote work.

AT recent times employers are increasingly thinking about involving remote employees in the work process. This became especially relevant after the introduction of Chapter 49.1 "Peculiarities of regulating the work of remote workers" in the Labor Code of the Russian Federation. Finally, the legislator recognized that it is possible to work effectively different ways and not just the location of the employer.

Of course, far from everyone can work remotely, but mainly those who have self-discipline, self-control, are responsible and able to plan their own working time, but for some reason cannot work on the territory of the employer. Such employees are a godsend for the employer. Of course, for both sides of the employment relationship there is a certain benefit in working at a distance.

Advantages and disadvantages

In accordance with Part 1 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 locality), outside a 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 interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet.

Based on this definition of remote work (it is also called " distant work") you can identify its main features. The work is carried out:

- under an employment contract;

- outside the location of the organization or separate divisions of the employer;

- using information and telecommunication networks, including the Internet.

So, you can work remotely, for example, at home, in cafes, in special coworking centers, in transport, outside the city, abroad, etc.

The benefits of this way of working are obvious for both the employee and the employer.

By and large, for the employer in hiring remote workers, there are the following advantages:

– the absence of the obligation to organize a workplace allows you to reduce the cost of renting premises for workplaces (including payment utilities, communication services, expenses for the maintenance of premises, etc.), appropriate furniture, equipment and technology;

- the absence of problems associated with the employee's travel to work, allows you to spend less time on finding out the reasons for non-compliance with labor discipline, in particular, being late for work, leading to a disruption in the work process, etc .;

- the possibility of more flexible communication with the employee outside the working hours allows you to increase productivity and labor efficiency;

- in some cases, it is possible to reduce the cost of business trips for employees to other regions, which at the same time allows you to work in other regions without opening separate divisions of the organization;

– you can terminate the employment contract at the initiative of the employer in a simplified manner (we will talk about this later), etc. Undoubtedly, there are also a number of advantages for an employee in remote work, such as:

- lack of attachment to the workplace allows you to work on the road, in a cafe, outside the city and even in other countries;

- the possibility of independent organization of their working and free time, while observing only the agreed deadlines for the performance of work, improves its quality;

- the ability to work without leaving the family (this applies mainly to women with young children) minimizes the problems associated with the constant absence of parents away from their children;

— savings on costs associated with the dress code and the appearance of the employee, lunches and other attributes of office life appropriate for work, contributes to more efficient preservation and accumulation of income received;

- the absence of stress associated with direct communication with management and other employees, preserves the health and psychological comfort of the employee;

- the possibility of working for several employers at the same time allows the employee to "get away from the routine" and grow professionally in different areas.

However, remote work has more than just advantages. Cons for the employer remote work consist mainly in the inability to:

— directly control the work of a remote worker;

- at any time to catch the employee at work in order to promptly resolve the issue if necessary;

- track how much time an employee actually spends on doing work;

- demand urgent work that involves telephone communication, e-mail etc., if there were technical communication problems;

- bring the employee to disciplinary responsibility on the basis of non-compliance by the employee with the internal labor regulations and other provisions in force in the organization aimed at strengthening labor discipline;

- track the leakage of information constituting the trade secret of the organization.

For an employee, the disadvantages of remote work are primarily in the absence of:

- full communication with colleagues at work and, as a result, being "outside society";

- "social package" associated with working on the territory of the employer, for example, if the employer provides other employees with free meals during their lunch break.

Note. In this vein, let's talk about the advantage of remote work over work under a civil law contract (for an employee). So, if there is an employment contract with a remote worker, the guarantees provided for by labor legislation apply to him, in contrast to work under a civil law contract (civil law does not provide for any social guarantees when rendering services or performing work), including social benefits and allowances for pregnant women and women with young children. In addition, it is important that the employment contract with a remote worker provides for the cases and procedure for its termination, in contrast to the civil law contract, which each of the parties can terminate at any time by notifying about it within the period specified in the contract, without explaining the reasons.

Who can work remotely?

As indicated in Part 2 of Art. 312.1 of the Labor Code of the Russian Federation, persons who have concluded an employment contract on remote work are considered remote workers. The law does not define specific categories of persons who can work remotely. That is, to work remotely, it is enough to conclude an appropriate employment contract with the employer. Of course, only those people who, for some reason, are uncomfortable working in a different way or who, due to various circumstances, cannot work on the territory of the employer, work remotely. Remote work is especially suitable for people with handicapped, persons with family responsibilities, part-time workers, students, pensioners, etc.

Note that in practice remote work is sometimes confused with home work (Chapter 49 of the Labor Code of the Russian Federation). However, there are significant differences between them. So, homeworkers, as a rule, perform work that does not require qualifications or special skills. Their work consists mainly in the manufacture of some material product, for which the employer provides them with materials, raw materials, semi-finished products or reimburses the corresponding costs. Homeworkers may even involve family members in the work. At home, for example, you can make toys, design interior items, knit clothes, make soap, cook pastries, etc. That is, for a home-based worker, by and large, the final result of work is important. Payment for home-based work is, as a rule, piecework. In addition, the employment contract is concluded only in paper form.

Remote workers often perform intellectual work that does not have a material result (the result here is information processed in a special way), through the use of modern technologies connections. Furthermore, this work, as a rule, is carried out by exchanging electronic documents using enhanced qualified electronic signatures (part 4 of article 312.1 of the Labor Code of the Russian Federation).

Therefore, designers, editors, journalists, proofreaders, consultants, programmers, lawyers, etc. can work remotely. Such work is paid in various ways, depending on which wage system the employer has. For employment, such employees can send documents to the employer and conclude an employment contract in electronic form.

Recruitment for remote work

The hiring of a remote employee consists of the same stages as the hiring of any other workers, but with some exceptions provided for in Ch. 49.1 of the Labor Code of the Russian Federation. So, as a general rule, the employer must carry out the following actions:

- receive from an employee Required documents for registration for work (passport, insurance certificate of state pension insurance, work book, documents military registration for persons liable for military service, documents on education, if the work requires special knowledge, and other documents provided for in Art. 65 of the Labor Code of the Russian Federation);

- draw up an employment contract;

- issue a job order;

- fill out the employee's personal card;

- draw up a work book (if entries will be made in it);

- familiarize the employee with the necessary local regulations of the employer.

Note. If a remote worker (or a person just entering remote work) and an employer interact by exchanging electronic documents, then enhanced qualified electronic signatures are used in the manner prescribed by law. Each of the parties is obliged to send in the form of an electronic document confirmation of receipt of an electronic document from the other party within the period specified by the employment contract on remote work.

Employment contract with a remote worker

The conclusion of an employment contract with a remote worker has a number of features.

First, it must specify, among other mandatory conditions:

- place of work (Article 57 of the Labor Code of the Russian Federation, letter from Rostrud dated 07.10.2013 N PG / 8960-6-1);

- the mode of working time and rest time (set by the employee at his own discretion, unless otherwise provided by the contract, part 1 of article 312.4 of the Labor Code of the Russian Federation);

- nature of work - remote work (Articles 57 and 312.2 of the Labor Code of the Russian Federation);

- the procedure for granting annual paid leave and other types of holidays (part 2 of article 312.4 of the Labor Code of the Russian Federation).

In addition, additional conditions may be:

- that no entries are made in the work book (if the parties have come to such an agreement in accordance with part 6 of article 312.2 of the Labor Code of the Russian Federation);

- the obligation of the employee to use equipment, software and hardware, information security tools and other means provided or recommended by the employer in the performance of their duties (part 8 of article 312.2 of the Labor Code of the Russian Federation);

- the procedure and terms for providing the employee with the equipment, software and hardware, information security tools and other means necessary for the performance of his labor duties (part 1 of article 312.3 of the Labor Code of the Russian Federation);

- the amount, procedure and terms for paying compensation for the use by the employee of equipment belonging to him or rented by him, software and hardware, information security tools and other means (part 1 of article 312.3 of the Labor Code of the Russian Federation);

- the procedure for reimbursement of other expenses related to the implementation of remote work (part 1 of article 312.3 of the Labor Code of the Russian Federation);

- the procedure and deadlines for the employee to submit reports on the work performed (part 1 of article 312.3 of the Labor Code of the Russian Federation).

Secondly, an employment contract with a remote worker can be concluded by exchanging electronic documents using an enhanced qualified electronic signature, while the place of conclusion of the contract will be the location of the employer (part 1 of article 312.2 of the Labor Code of the Russian Federation). In this case, the employer, no later than three days from the date of conclusion of the contract, is obliged to send the employee by registered mail with notification a properly executed copy of the employment contract in paper form (part 2 of article 312.2 of the Labor Code of the Russian Federation).

Let us give as an example a fragment of an employment contract containing the conditions for remote work (Example 1).

1. General Provisions

1.3. Work under this contract is the main place of work for the Employee.

1.4. Place of work: remote work at home.

1.6. The employee reports to the General Manager.

1.7. The employee is obliged to perform the duties stipulated by the job description.

1.8. The work of the Employee in the position specified in clause 1.2 of this employment contract is carried out under normal conditions.

1.9. Nature of work: remote work at home using the Internet.

2. Rights and Obligations of the parties

2.1. The employee is obliged:

2.1.10. use in the performance of their duties software and hardware, as well as information security tools provided by the Employer;

2.1.12. monthly (no later than the 30th day of each month) submit to the Employer a report on the work done, indicating the time actually spent by the Employee to perform the work, in the form given in Appendix 1 to this contract.

2.2. The employer is obliged:

2.2.8. provide the Employee with the necessary software and hardware for the performance of his/her labor duties, as well as information security tools;

2.2.13. on a monthly basis (no later than the 30th day of each month) to reimburse the Employee for the expenses incurred by him for Internet and mobile communications based on the supporting documents submitted by the Employee (checks, receipts, etc.).

3. Liability of the parties

4. Mode of work and rest

4.1. The employee is set a five-day work week with two days off: Saturday and Sunday. Features of working hours: 4 hours a day.

4.2. The start and end time of work, including breaks in work, is set by the Employee at his own discretion.

4.3. The employee is granted an annual basic paid leave of 28 calendar days.

4.4. By agreement of the parties, annual leave may be divided into parts, one of which must be at least 14 days.

5. Terms of remuneration

5.1. The Employer undertakes to pay wages to the Employee on time and in full. The employee is paid a salary of 30,000 (Thirty thousand) rubles per month based on 0.5 of the official salary.

5.2. The Employer has the right to establish allowances and financially encourage (bonuse) the Employee in accordance with the Labor Code of the Russian Federation, organizational and administrative documents of the Employer.

5.3. Wages are paid to the Employee twice a month by transfer Money to banking debit card Employee.

6. Social insurance

An employee is subject to compulsory social insurance in the manner and under the conditions established by the legislation of the Russian Federation.

7. Validity and grounds for termination of the employment contract

7.1. This agreement is concluded for an indefinite period.

7.2. This agreement shall enter into force on the day of its signing by the parties.

The employee is obliged to start performing labor duties from the day specified in clause 1.5 of this agreement.

7.3. This contract may be terminated in the manner and on the grounds provided for by the labor legislation of the Russian Federation. Termination of the employment contract is carried out on the basis of the order of the Employer.

The day of dismissal of the Employee is the last day of his work, unless otherwise provided in the Labor Code of the Russian Federation. On this day, the Employee is issued a work book, wages are calculated and other payments provided for by regulatory legal acts are made.

The order of acceptance to work

An order for hiring for remote work is issued in the usual way, with the exception of filling in the column "Conditions for hiring, nature of work" (if the company uses form N T-1, approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1, hereinafter - the decision of the State Statistics Committee of the Russian Federation N 1), which indicates that the work is remote.

Familiarization with local regulations

When registering a remote employee for work, a HR specialist may have a question: does such an employee need to be familiarized with the local regulations of the employer? The question is fair, especially if we assume that the employee does not work on the territory of the employer. As for local regulations, including instructions in the field of labor protection, in accordance with Part 2 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 carries out:

– investigation and accounting in the manner prescribed by law of accidents at work and occupational diseases;

— fulfillment of instructions of officials of authorized state bodies and consideration of submissions of public control bodies within the time limits established by law;

— compulsory social insurance of employees against industrial accidents and occupational diseases;

— familiarization of remote workers with labor protection requirements when working with equipment and means recommended or provided by the employer;

— other actions provided for by the employment contract on remote work.

When applying other local regulations, an individual approach to the employee is required. For example, if, in accordance with the contract concluded with him, he independently determines the regime of working time and rest time, then he will not obey the internal labor regulations of the organization. Accordingly, it is not necessary to acquaint him with this document.

If, despite the remote place of work, the working hours and rest periods are determined by the employer in the internal labor regulations, of course, the employee will have to be familiarized with this document under a personal signature. At the same time, a clause should be made in the employment contract: "The employee undertakes to be guided by the internal labor regulations to the extent that does not contradict the terms of this contract."

In addition, a remote worker must be familiar with local regulations that determine the procedure and conditions for remuneration, containing provisions on the processing of personal data, and other documents related to his work.

These documents can be sent to the employee in electronic form using an enhanced qualified signature. In turn, the employee must confirm familiarization with them by sending the appropriate confirmation to the employer, also using an enhanced qualified signature.

Obtaining an enhanced qualified electronic signature

As we have repeatedly mentioned, the employer and employee, when exchanging electronic documents, must use an enhanced qualified signature (part 4 of article 312.1 of the Labor Code of the Russian Federation). Thus, both parties to the remote work employment contract are required to send each other confirmation of receipt of the electronic document.

An enhanced qualified electronic signature is a signature in respect of which the following rules:

- such a signature was obtained as a result of cryptographic transformation of information using an electronic signature key;

- it allows you to identify the person who signed the electronic document;

- this signature makes it possible to detect the fact of making changes to the electronic document after the moment of its signing;

- it is created using electronic signature tools;

— its verification key is specified in the qualified certificate;

- for its creation and verification, electronic signature tools are used that have received confirmation of compliance with the requirements established by this law.

However, Art. 11 of the Federal Law of April 6, 2011 N 63-FZ "On Electronic Signature" defines the conditions for recognizing a qualified electronic signature.

Document Fragment

Article 11 of the Federal Law of April 6, 2011 N 63-FZ "On Electronic Signature"

An enhanced qualified signature must have a qualified certificate from an accredited certification authority that guarantees its authenticity. In turn, information about accredited certification centers can be found on the official website of the Russian Ministry of Telecom and Mass Communications on the Internet: minsvyaz.ru (in the "Accreditation of certification centers" section).

To obtain a qualified certificate, you must contact an accredited certification center by submitting the following documents or their duly certified copies:

1) the main identity document, insurance certificate of the applicant's state pension insurance - individual or founding documents, a document confirming the fact of making an entry about a legal entity in the Unified State Register of Legal Entities, and a certificate of registration in tax authority the applicant is a legal entity;

2) a duly certified translation into Russian of documents on state registration legal entity in accordance with the law foreign country(for foreign legal entities);

3) a power of attorney or other document confirming the right of the applicant to act on behalf of other persons.

After the listed actions are completed, you can legally move on to this new type of interaction between the parties to the employment relationship.

Registration of an employee's personal card

The employee's personal card is issued for remote workers in the same way as for other employees. The employer can use the unified form of personal card N T-2, approved by the Decree of the State Statistics Committee of the Russian Federation N 1, or its own form of the card, approved in the prescribed manner by the employer and used in a particular organization.

Note. Changing the terms of an employment contract with a remote worker is carried out in the same manner as its conclusion, i.e. by exchanging electronic documents using an enhanced qualified electronic signature. The employer, no later than three days from the date of the conclusion of the agreement on changing the employment contract, is obliged to send the employee by registered mail with notification a duly executed copy of the agreement and the corresponding order in paper form. Upon receipt of the documents, the employee signs them and returns them to the employer in the same way.

Time tracking

In accordance with Part 4 of Art. 91 of the Labor Code of the Russian Federation, the employer is obliged to keep records of the time actually worked by each employee. Meanwhile, there are no exceptions for remote workers by law. As we noted, remote workers, unless otherwise established by the employment contract, independently determine the mode of working time and rest time. In this case, in the report card in the column in which the number of hours worked is entered, you can put down:

- the number of hours that the employee must work per working day (for example, "8", "4", etc., depending on the mode of work agreed with the employer);

- the number of hours per day that the employee actually spent on work (for example, "3", "10", etc., depending on the work schedule agreed with the employer), which he can inform the employer by e-mail. At the same time, the total number of hours worked per month should not exceed the normal working hours specified in the employment contract.

If the remote worker obeys the internal labor regulations established by the employer, then the time sheet is filled out in the same way as for the rest of the employees of the organization.

Note. Considering that, in accordance with Part 2 of Art. 91 of the Labor Code of the Russian Federation, the normal working hours cannot exceed 40 hours a week, it should be borne in mind that the labor legislation on overtime work will also apply to a remote worker if the employer engages such an employee to work outside the normal working hours.

As for the form of the time sheet, the employer may continue to use the unified form N T-12 or N T-13, approved by the Decree of the State Statistics Committee of the Russian Federation N 1, or approve in the prescribed manner its own form of the time sheet used in a particular organization.

Question. Considering that in most cases a remote worker independently organizes his working time and rest time, how can an employer control the time he actually spent on work?

Of course, it is very difficult to control an employee who is not working on the territory of the employer, but it is possible. Thus, the employer and the employee may agree to include in the employment contract a provision that the employee must, simultaneously with the completed task, email note how much time was spent on its implementation. Or, instead, you can charge the employee with the obligation to prepare reports on the work done for the working day, indicating the time of completion of each task.

At the same time, if the employment contract provides for the obligation of the employee to use software and hardware provided or recommended by the employer, the employer may also use the technical tools information systems control of time recording for the execution of a particular order.

Termination of relationship with a remote worker

An employment contract with remote employees may be terminated on the grounds established by the Labor Code of the Russian Federation. In accordance with Part 1 of Art. 312.5 of the Labor Code of the Russian Federation, termination of an employment contract with a remote worker at the initiative of the employer is allowed only on the grounds provided for by the employment contract. For example, these reasons could be:

- the employee's refusal to use information security tools provided or recommended by the employer;

- systematic non-observance by the employee of the deadlines for the performance of work;

- performance of work in an improper manner, etc.

Just as in the above cases, when exchanging electronic documents related to the termination of an employment contract, the parties to the contract act through the exchange of relevant electronic documents using an enhanced electronic signature with the obligatory forwarding of paper copies of such documents.

Note that the termination of labor relations with a remote worker is formalized by an order (either the unified form N T-8, approved by the Decree of the State Statistics Committee of the Russian Federation N 1, or its own form of order, approved in the prescribed manner by the employer and used in a particular organization, is used). If the employee is dismissed on the grounds provided for by the employment contract, then the specific provision of the contract should be indicated in the order as the basis for terminating the employment contract.

In the case when, when hiring, an entry was made in the work book, an entry on the termination of the employment contract must also be made in it with reference to the relevant article of the Labor Code of the Russian Federation or to a specific provision of the employment contract and Part 1 of Art. 312.5 of the Labor Code of the Russian Federation. In a situation where the interaction between the employer and the remote worker is carried out by exchanging electronic documents using enhanced qualified electronic signatures, the employee must be sent an electronic notification in advance that the work book will be sent to him by mail. The employee must express his consent in a response e-mail, certified by an enhanced digital signature. After obtaining the consent of the employee, it is necessary to send him a work book by registered mail with notification. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book. If for some reason the employee has not received a work book, then at his written request, the employer is obliged to issue it no later than three working days from the date of the employee’s request (part 6 of article 84.1 of the Labor Code of the Russian Federation).

If the work book, by agreement between the employee and the employer, was not drawn up or no entries were made in it about remote work, therefore, when the employee is dismissed, no entries on the termination of the employment contract are made in it.

In addition, an entry is made in the employee’s personal card about the termination of the employment contract indicating the appropriate reason (with reference to the specific provision of the employment contract, the relevant article of the Labor Code of the Russian Federation).

Question. How can a remote worker obtain copies of work-related documents?

A remote worker can apply to the employer with an application for a copy of the order for employment (for transfer to another job, for dismissal), an extract from the work book (if entries were made in it), salary certificates, accrued and actually paid insurance premiums for compulsory pension insurance, the period of work with this employer, etc. (Article 62 of the Labor Code of the Russian Federation). The employer is obliged to send duly certified copies of documents no later than three working days from the date of filing the employee’s application to the remote worker by registered mail with notification or, if indicated in the application, in the form of electronic documents (part 8 of article 312.1 of the Labor Code of the Russian Federation).

1) "a signature for a remote worker must be issued if the work is related to the signing of documents", do I understand correctly that an electronic signature is not needed to sign orders, an employment contract and other personnel documents? If so, is it possible to send original documents by mail to sign them? when should documents be sent? 2) is it possible to register an employee for remote work if he works in the region (at home), performing part of the functions (sales) outside the home (by car).

Answer

Answer to the question:

1) "a signature for a remote worker must be issued if the work is related to the signing of documents", do I understand correctly that an electronic signature is not needed to sign orders, an employment contract and other personnel documents?
If so, is it possible to send original documents by mail for signing? When should the documents be sent?

An electronic signature is not required. Sending documents by mail is possible. Only in the event that only a remote worker (or a person who is just entering a remote job) and an employer interact by exchanging electronic documents, then enhanced qualified electronic signatures are used in the manner prescribed by law.

Documents must be sent on time so that there are no violations of familiarization with them in accordance with the norms of the Labor Code of the Russian Federation.

2) is it possible to register an employee for remote work if he works in the region (at home), performing part of the functions (sales) outside the home (by car). Thank you!

On this issue, an analysis of the employee's labor function is required: if the work is associated with constant business trips, then it is rather necessary to draw up the traveling nature of the work. If this employee will perform the labor function through the means of telecommunications of the employer and other persons, then you can arrange remote work.

At the same time, according to 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 locality), outside a 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 interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet. However, there are no restrictions on the place of residence of a remote worker in Sec. 49.1 of the Labor Code of the Russian Federation no. Consequently, a remote worker - a citizen of the Russian Federation can live and work remotely where it is convenient for him. At the same time, the legislation does not oblige either the employee or the employer to track the place of work of a remote worker.

Thus, it can be said that traveling nature and remote work are completely different concepts. Therefore, logically speaking, a remote worker cannot have a traveling nature of work.

As for business trips, the current legislation does not contain any restrictions on sending a remote worker on a business trip.

Therefore, you need to either arrange remote work with business trips, or the traveling nature of the work (depending on what specific functions you plan to give the employee).

With regard to travel, we note the following:

Business trip - an employee's trip by order of the employer for a certain period of time to perform an official assignment outside the place of permanent work (Article 168 of the Labor Code of the Russian Federation).

As a general rule, when sending an employee on a business trip, it is not necessary to issue a memo. But if the management of the organization considers the preparation of such notes appropriate, this rule can be fixed by a local document (clause 3 of the regulation approved by the Decree of the Government of the Russian Federation of October 13, 2008 No. 749). For example, by order of the director or Regulations on business trips. The development of such documents is not prohibited. A memo can be drawn up in any form.

A memo must be issued only if:

• the employee goes on a business trip or back to personal, rented or official transport. In such a situation, the actual period of stay at the place of business trip must be indicated in a memo, which the employee, upon returning from a business trip, submits to the employer along with supporting documents confirming the use of transport: a waybill, invoices, receipts, cashier's checks etc.;
• upon returning from a business trip, the employee does not have any documents at all confirming travel and accommodation on a business trip. In this case, the employee draws up a memo upon returning from a business trip, which must contain confirmation of the receiving party about the time of arrival of the employee to the place of business trip and departure back. To it he attaches a document in which the host organization confirms that he was at that time at the place of business trip.

This is stated in paragraph 7 of the Regulations, approved by Decree of the Government of the Russian Federation of October 13, 2008 No. 749.

Please note that when providing an employee with a company car (or using a personal one), the organization must have an order for the employee to combine the profession (position) of the driver, and in the employment contract a clause stating that he himself drives the car and an additional payment for this.

The duties of an employee who is not a driver cannot include the obligation to drive a car, since such an obligation relates to the labor function of a car driver.

If the expansion of duties leads to a change in the labor function, then the employer must obtain the written consent of the employee to perform additional work, set a surcharge.

About pre-trip and post-trip medical examinations:

The legislation establishes the features of labor regulation of transport workers. To employees whose work is directly related with management vehicles , include, in particular, car drivers.

These features include in particular:

• mandatory preliminary medical examinations when applying for a job (part 1 of article 213 of the Labor Code of the Russian Federation);
• mandatory periodic medical examinations. If the driver is under 21 years old, then he undergoes such inspections annually (part 1 of article 213 of the Labor Code of the Russian Federation, paragraph 1 of article 23 of the Federal Law of December 10, 1995 N 196-FZ);
• pre-trip and post-trip health checks(Clause 1, Article 23 of the Federal Law of December 10, 1995 N 196-FZ, Article 213 of the Labor Code of the Russian Federation).

In accordance with Part 2 of Article 212, Part 6 of Art. 213 of the Labor Code of the Russian Federation, medical examinations (examinations), including mandatory preliminary examinations, in cases provided for by labor legislation and other regulatory legal acts containing labor law norms, are carried out at the expense of the employer.

Pre-trip medical examinations are required for all employees performing work related to the movement and management of vehicles (clause 3 of article 23 of the Law of December 10, 1995 No. 196-FZ).

Post-trip medical examinations are required to pass only those drivers whose work is related to the transportation of passengers or dangerous goods (paragraph 3 of article 23 of the Law of December 10, 1995 No. 196-FZ).

For violation of the procedure for conducting mandatory pre-trip and post-trip medical examinations of drivers, the organization and its officials may be fined (Article 11.32 of the Code of Administrative Offenses of the Russian Federation). In addition, administrative responsibility is provided for the admission to work of a driver who has not passed the appropriate mandatory medical examination (parts 3 and 5 of article 5.27.1 of the Code of Administrative Offenses of the Russian Federation).

Thus, based on the above, we can summarize:

1. A remote worker should not document the traveling nature of the work;

2. When providing an employee with a company car (using a personal car for official purposes), a combination must be issued for him, such an employee must undergo medical examinations that are provided for drivers;

3. Remote work and work as a driver are incompatible concepts, and therefore it seems impossible to apply for a combination of a driver’s position to a remote worker, since the concept of remote work implies the performance of a labor function using and for the implementation of interaction between the employer and the employee on issues, associated with its implementation, public information and telecommunication networks, including the Internet;

4. A remote worker can be sent on a business trip and provide the employee with a company car, but in this case, the employer needs to arrange a combination for the employee for this period, as well as organize medical examinations.

Details in the materials of the System Personnel:

1. Answer:How to apply for a job as a remote worker

The concept of remote work

What is meant by remote work?

Remote work is the performance of a labor function:

• outside the location of the employer (branch, representative office, other separate structural unit, including those located in another area);
• outside the stationary workplace;

• outside a territory or facility directly or indirectly under the control of the employer.

At the same time, in order to perform work and carry out interaction, the employer and employee use public information and telecommunication networks, including the Internet.

Remote employees are individuals who work remotely.

Such rules are established in parts, Article 312.1 of the Labor Code of the Russian Federation.

With remote employees, which means that such employees are.

The conclusion of remote labor relations with employees who will work abroad, according to Russian legislation.

For more on the similarities and differences between remote work and home work, see .

Question from practice: is it possible to conclude an employment contract for remote work if the employee lives in the same city where the organization is located

Yes, you can. In this case, it is necessary to distinguish between remote and home work.

For more information about the differences between home and remote work, see.

Question from practice: is it possible to conclude an employment contract on remote work if a Russian or foreign citizen will perform his work abroad

It is not recommended to conclude employment contracts for remote work in the described situation. In such cases, it is optimal to conclude a civil law contract.

The Labor Code of the Russian Federation does not provide for the possibility of concluding an employment contract with an employee who will actually perform work abroad. At the same time, the status of the employee is not important: a citizen of Russia, a foreigner or a stateless person.

The fact is that the employer is obliged to provide all his employees, including remote ones (). At the same time, the regulatory documents of the Russian Federation, which contain labor standards, are valid only on the territory of Russia (). Thus, it is neither formally nor legally possible to provide safe working conditions for remote employees working abroad. Therefore, it is recommended to conclude with such employees.

Such explanations are also given by specialists of official departments in letters and.

Regulatory regulation

What documents regulate the work of remote employees

Teleworkers are subject to general rules labor legislation. At the same time, labor relations with such employees have their own characteristics, which regulate:

• Labor Code of the Russian Federation;
• in terms of regulating the procedure for obtaining an electronic signature and the exchange of electronic documents between an employee and an employer.

Recruitment

How is the transfer and execution of documents when accepting a remote employee

For its part, the employer, even before the conclusion, must familiarize the employee with local acts( , etc.). This can be done by exchanging electronic documents with an electronic signature between the employer and remote employee. This follows from the provisions of Article 312.1, Article 312.2 of the Labor Code of the Russian Federation, Law of April 6, 2011 No. 63-FZ.

Question from practice: does a separate division arise at the place of work of a remote employee

No, it doesn't.

Labor contract

How to draw up an employment contract with a remote employee

The relationship between the remote employee and the employer regulates (Art. , Labor Code of the Russian Federation). When applying for it, be guided by, as well as special rules that relate to labor relations with remote workers (). In particular, in an employment contract with a remote worker, you can additionally specify:

• the procedure and terms for submitting reports on the work performed;
• information about software and hardware, information security tools, equipment that should be used in the course of work. All these funds can be provided by the employer, then the contract must specify the procedure and terms for providing the employee with such equipment, as well as the procedure for its return upon termination of the contract. In addition, the terms of the contract may provide that the employee uses his own or leased funds, then it is appropriate to prescribe in the contract the procedure and terms for paying compensation for such use;
• the procedure for reimbursement of other expenses associated with the implementation of remote work (for example, expenses for the Internet, telephone connection);
• to terminate the employment contract at the initiative of the employer.

Specify the location of the employer as the place of conclusion of the employment contract for remote work.

An employment contract for remote work, and subsequently additional agreements to it, can be concluded by exchanging electronic documents with electronic signatures between the employer and the employee. At the same time, no later than three calendar days from the date of conclusion of the contract, the employer must send a paper copy of the contract to the employee by registered mail with notification.

Such rules are provided for in the articles of the Labor Code of the Russian Federation, the Law of April 6, 2011 No. 63-FZ.

Question from practice: is it necessary to indicate the place of work in an employment contract with a remote employee

Yes, you do, if possible.

The place of work is a prerequisite of the employment contract (). This means that in the employment contract for remote work in general case it is necessary to indicate information about the place of work at which the remote employee directly performs the duties assigned to him by the employment contract. Rostrud also gives similar explanations. As a place of work, you can specify both your home address and any other place where the work process will actually take place.

At the same time, based on the definition, in some cases it is not possible to indicate the place of work in the contract with a remote worker for objective reasons. For example, in the case when an employee performs a labor function outside a stationary place and any specific territory. There is no reason to indicate the Internet as a place of work, since it is a means of performing a labor function, and not a place of work. In this case, it will be enough to reflect only in the employment contract with the distance worker.

The order of acceptance to work

How to apply for a remote worker

Issue an order for hiring a remote employee in. You can familiarize the employee with it by exchanging electronic documents with electronic signatures between the employer and the remote employee ().

Employment history

How to issue a work book for a remote employee

Insurance pension certificate

How to issue an insurance pension certificate for a remote employee

If an employee first gets a job, then the employer is obliged (). When hiring a remote employee, a special procedure applies. The employee independently applies to the territorial office pension fund RF and receives a certificate (). The employee sends the information about the received certificate to the employer in electronic form, as well as that the employee presented when applying for a job ().

Working mode

How to set the work mode for a remote employee

The remote employee sets the mode of working time and rest time at his own discretion. But if the nature of the job requires that the employee perform the work in certain days or hours, then the specific mode of work should be fixed in the employment contract or additional agreement to him. This conclusion follows from the totality of the provisions of the articles, the Labor Code of the Russian Federation.

Filling out the time sheet

Question from practice: how to keep a time sheet for a remote worker

The legislation does not provide a clear answer to this question.

Vacation

How to grant leave to a remote worker

Provide annual and other types of vacations to remote employees by, while fixing the procedure for providing (types, duration) in ().

Occupational Safety and Health

What obligations in the field of labor protection the employer must fulfill in relation to remote employees

In order to ensure safe conditions and labor protection for remote workers, the employer is obliged to:

• investigate and take into account what is happening with remote employees and;
• comply with the instructions of the state labor inspectorate;

• carry out compulsory social insurance of remote employees against industrial accidents and occupational diseases;
• familiarize remote employees with labor protection requirements when working with equipment and means recommended or provided by the employer for work.

Comply with other safety and health responsibilities for teleworkers (e.g., provide overalls, train safe methods and methods of performing work, etc.), the employer is not obliged, unless otherwise provided by the employment contract.

This procedure follows from the provisions of the articles and the Labor Code of the Russian Federation.

Document flow features

What are the features of the exchange of documents with remote employees

If a remote employee needs to apply to the employer with a statement, provide explanations or transfer other information, then he can do this in electronic form, certifying his appeal with an electronic signature.

Also, a remote employee may need. Then the employer should send such copies by registered mail with notification, unless the application expressly states that the documents can be provided electronically. In any case, copies must be sent no later than three working days from the date of receipt of the request from the employee.

A remote employee has the right to receive all insurance payments on a general basis:, etc. To receive them, the employee sends the employer the relevant original documents: certificates of incapacity for work, certificates, etc. by registered mail with notification.

Documentation of dismissal

How to document the dismissal of a remote employee

If there are no special conditions for dismissal on an additional basis in the employment contract, then with a formal approach, we can conclude that it is not necessary to notify the employee in advance. However, the employee may not agree with this approach and file a claim for the legality of the dismissal. In turn, the courts in this dispute may not support the employer and recognize the dismissal procedure as discriminatory (). Therefore, in order to avoid controversial situations if the employer establishes an additional basis for dismissal, then he should not only clearly state the basis itself, but also specify the dismissal procedure. For guidance, use the principles and approaches to .

Ivan Shklovets,

Deputy Head of the Federal Service for Labor and Employment

With respect and wishes for comfortable work, Svetlana Gorshneva,

Expert Systems Personnel

Many companies have long been convinced of the real benefits of hiring remote workers, but literally until recently in Russia there was no legal basis for formal labor relations. How to correctly register remote employees for work, what is important to consider in employment contracts, how to avoid financial risks- tells the IPK legal expert Tatyana Shirnina.

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 high development information technologies. And in practice, the principle of remote work has been used for a long time, but there was no legal regulation for a long time.

Today, outside the location of the employer (at home, in another city / country, in a restaurant, on the beach, etc.), specialists with different levels qualifications: 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 explanation of Rostrud does not equate to 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 when 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 work week, with two days off. Specify which days are considered working days, which days off. With regard to the time of the beginning and end of the working day, as well as a break for rest and meals, prescribe that they are set by the employee independently. In this case, you can write like this: “Duration of one working day: not less than 5 hours and not more than 9 hours a day. The duration of the break for rest and meals is 1 (one) hour, which is not included in working hours and is not paid.

Additional features

From the foregoing, we can conclude that it is necessary to fix the ways of interaction between the employee and the employer. In the employment contract, it is recommended to additionally prescribe the means of communication (mobile phone, e-mail, Skype, etc.) that the employee and the employer will use, and the time during which the employee must answer the call, incoming message / call back / write a message / go to connection.

What mode of operation would you prescribe in official documents, remember: a remote worker may be at a point with a different local time. Therefore, when determining the mode of operation, specify time zones. Otherwise, it may happen that when you get in touch with an employee at 8:00 Moscow time, you will not wait for him. After all, if he ends up, say, in New York, he will have a deep night - 00:00.

Don't Forget Vacation

Part 2 Art. 312.4 of the Labor Code of the Russian Federation obliges employers to prescribe the procedure for granting annual paid leave and other types of leave to a remote worker in an employment contract.

What else should be provided in the employment contract with the "remote worker"?

It is recommended to clearly state what equipment (software and hardware) the employee will use in the performance of his labor function, by whom it is provided, what actions the employee needs to perform and within what time frame it is necessary to inform the employer about a breakdown, technical malfunctions. If the employee will use his equipment (for example, a laptop, telephone, etc.), the employment contract should additionally regulate the procedure and terms for paying compensation for its use.

In order to track the quality and quantity of the work performed, you can additionally prescribe the procedure, terms and form for the employee to submit reports on the work performed.

Of course, as with any relatively convenient option, remote work has its pitfalls.

1) When accepting a remote worker in a company, interviews are often conducted via Skype or by e-mail. In this case, the employer bears the risk of incomplete and unreliable assessment business qualities specialist. Agree, at home, when there are a lot of reference material(books, manuals, Internet), it is much easier to pass an interview.

2) Since remote work implies the possibility of electronic document management, including the signing of an employment contract, certain difficulties may arise. For example, the employer signed an employment contract and sent it to the employee, but he did not return the signed document and left all copies with him, or sent a scanned copy.

Unfortunately, due to simple carelessness in the event of a litigation, the terms of the employment contract may be recognized as inconsistent with all the ensuing consequences. Therefore, remember: the employment contract must be signed by both parties with an enhanced qualified electronic digital signature or a "live" signature on paper.

3) The question of control remains open, namely, how many hours a day a person works. That is, the interaction must be clearly regulated, otherwise the employer will never know how long the remote worker worked on a given day - 8 hours or only 2 hours.

4) When an employment contract is terminated at the initiative of an employee, the employer often receives a scan of his letter of resignation. However, based on the existing judicial practice, the courts do not recognize the scanned application as evidence, indicating that the employee's will to dismiss must be expressed either in writing with the employee's "live" signature, or signed with an enhanced qualified electronic digital signature.

5) Terms 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. Moscow City Court in Appellate 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 to the defendant by e-mail. 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.

At the moment, there is no judicial or inspection practice on this issue, so what assessment the authorized bodies can give to such an organization of work can only be guessed at.

As rightly noted in the 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 specifics 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 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, you can make web designers, programmers working in remote access, and other employees whose work does not require their presence in the office.

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. Remote workers and homeworkers: main 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 copy of the employment contract sent to the employee will become a document on his seniority and labor activity.

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. permanent place work, for the purposes of this employment contract, the territory assigned to the employee is considered, 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. conditioned this conclusion next.

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 employee uses 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 obliged to perform his labor functions 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 that constitutes state secret, the means in which they are implemented, as well as the means of monitoring the 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 commissioned by a third party) or use ready means protection 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 ordinary 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 01/05/2004 No. 1 approved the form No. T-2 "Personal employee card". Note that from January 1, 2013, the use of this form is not mandatory. However, the employer may 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 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

Information about the work of TK No. 0000001
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
				Romashka Limited Liability Company (Romashka LLC)
				Hired in the engineering department 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.