Features of remote work of an employee. Distance work. Distance employment: work and rest

AT russian legislation there is no concept of "remote work". There is a term "teleworking". Labor relations with teleworkers are regulated by Chapter 49.1 of the Labor Code Russian Federation... We will analyze the features and options for the wording for the employment contract and orders.

The most important thing for the employer is to correctly determine what kind of work is really remote.

Remote work. Terms and definitions, pros and cons

Work is considered remote if the conditions are simultaneously met (Article 312.1 of the Labor Code of the Russian Federation):

1. Work is performed outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another location), outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer.
2. For the performance of the labor function and for the implementation of interaction between the employer and the employee, public information and telecommunication networks, including the Internet, are used.

A remote worker can do his job anywhere, anywhere in the world. The employer cannot restrict the presence of the employee in any territory.

Pros for the employee:

• you can perform work duties at any convenient time;
• you can not be tied to an office or a specific area;
• you can not personally be present when applying for a job, as well as for further interaction with the employer.

Pros for the employer:

• no need to organize workplace;
• no need to spend special assessment working conditions, obtain permission from the authorities fire safety and sanitary inspection.

Cons for an employer:

• difficult to monitor the employee's performance job responsibilities;
• there are difficulties with the application disciplinary action;
• can't be fired for absenteeism.

However, these disadvantages are mitigated by the competent drawing up of the employment contract and the job description of the employee.

The sequence of steps when registering labor relations with teleworkers is the same as with ordinary employees performing their labor duties at workplaces, but with specific features. Let's consider them.

Step 1. Hiring a teleworker. Submission of documents

A prospective employee can present documents required for admission:

• personally;
• at in electronic format, if labor contract is through the exchange of electronic documents (hereinafter in the article we use the wording "through EDF").

The employer may require the provision of notarized copies of documents in hard copy, however, Art. 312.2 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation), the legislators did not specify the period during which the employee must fulfill this requirement.

The package of documents for admitting an employee is standard (Article 65 of the Labor Code of the Russian Federation).

By agreement of the parties, information about remote work can be omitted from the work book of a remote worker. It is enough to reach an agreement with him in one of the ways:

• in the application where the employee asks not to make entries about remote work in the work book, the employer puts a resolution;
• in the condition of the employment contract that the record of remote work is not entered in the work book. The document confirming the length of service, in this case, will be an employment contract.

When concluding an employment contract for the first time, a work book for a remote worker can also be omitted.

Step 2. Familiarization of the remote worker with local regulations

With local regulationsdirectly related to work activities, a remote worker can be introduced:

• personally against signature;
• through EDF if the employee cannot come to the employer. Enhanced qualified electronic signatures of the teleworker and employer will be required. The employee must confirm the fact of familiarization with local acts by sending an electronic notification.

Step 3. Conclusion of an employment contract with a teleworker

An employment contract with an employee can be concluded in person or through EDF. The type of work is indicated in the employment contract - remote.

An example of a teleworking clause in an employment contract:

« This employment contract is concluded for teleworking. "

When choosing the content of an employment contract, it is necessary to be guided by Art. 57 of the Labor Code of the Russian Federation, but take into account the specifics.

Workplace of a teleworker

Place of work is a prerequisite for an employment contract. It should not be confused with an indication of the workplace, i.e. the place where the employee must perform the labor function. It is impossible to write a condition about a workplace with a teleworker in an employment contract. This would contradict the very concept of telecommuting.

The place of work means an organization located in a specific locality (settlement), therefore, the name of the employer and the name of the settlement where it is registered are indicated in the employment contract.

An example of a condition on a place of work in an employment contract with a teleworker:

"Place of work: Company with limited liability "Alliance" (LLC "Alliance"), Moscow ".

Working hours and rest hours

The remote worker sets the working hours and rest hours at his own discretion, unless otherwise provided by the employment contract.

If it is important for an employer to intersect with a teleworker in his work time, then in the labor contract it is necessary to prescribe the elements of the regime: the duration of the working week, the alternation of workers and non-working days... The length of the working day, the start and end time of the working day can be defined in range values \u200b\u200bor through the flexible working time mode.

In accordance with Art. 91 of the Labor Code of the Russian Federation, the employer is obliged to keep track of the time that the employee actually worked, but the specifics of recording the working time of remote workers are not spelled out in the Labor Code of the Russian Federation. In the case of a teleworker, the employer also uses the timesheet. It can be filled in based on the information that the employee will transmit to the employer, for example, through the timing of working hours or a program that will show the employee's presence in the network, i.e. performing their duties.

The most important terms of a teleworking employment contract

These sections in the contract must be written in as much detail as possible:

• the procedure and terms for providing teleworkers with equipment, software and hardware, information security tools and other means necessary for the performance of their duties under an employment contract for teleworking;
• the procedure and terms for providing remote workers with reports on the work performed, the amount, procedure and timing of payment of compensation for the use by remote workers of equipment owned by them or leased by them, software and hardware tools, information protection tools and other means;
• procedure for reimbursing teleworkers for other costs associated with performing teleworking.

If the employer assumes the costs of installing the software and hardware that the employee must use, then they prescribe the terms when the employer provides the employee with the necessary equipment.

An example of a condition for providing an employee with software and hardware in an employment contract:

“The employer undertakes to provide the employee with the following equipment to perform his labor functions:

• laptop _________ (write the brand and model of the laptop);
• mobile phone _________ (indicate the make and model of the mobile phone), provided with a work number _________ (indicate the work phone number);
• _________ (write other other equipment that the employer will provide to the employee, such as a printer, scanner, etc.).

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

• kontur.Accounting program;
• ___________________________ (write other other software that the employer intends to provide to the employee).

The employer undertakes to provide the employee with the equipment and software listed in this clause _______________ (write down the period within which the appropriate equipment should be provided). The equipment and software listed in this paragraph is provided to the employee by _________ (as an option: delivery to the employee's place of residence). "

Also, in detail in the employment contract, it is prescribed in what time frame, through what communication channels and with what frequency the employee should contact the employer, in what format he should provide reports, the procedure for document flow. There is one simple rule that works with a teleworker: the more detail, the better.

An example of a condition for reporting by an employee in an employment contract:

“The teleworker provides the employer with a daily and weekly progress report. Daily and weekly reports on the work done are provided in electronic form to the email address _________. The daily report is provided on the employee's working days no later than 18:00 Moscow time. The weekly report is submitted no later than 17:00 Moscow time on Friday of the week for which the report is submitted _____. "

Also, it is necessary to make a condition on the provision of annual paid leave in the employment contract.

An employment contract for teleworking is terminated at the initiative of the employer on the grounds provided for by the employment contract (Article 312.5 of the Labor Code of the Russian Federation).

A remote worker cannot be fired for absenteeism, i.e. for absence from the workplace without good reason, because a teleworker does not have a workplace.

Few people pay attention to the not entirely successful wording of Art. 312.5 of the Labor Code of the Russian Federation: it uses the verb "produced" in the imperative mood, ie the norm is imperative. And this means that the employer is obliged to provide, as a condition of the employment contract, the grounds for the dismissal of such a remote worker.

If an employment contract for teleworking is concluded through the exchange of electronic documents, the employer, no later than three calendar days from the date of conclusion of this employment contract, is obliged to send the remote worker by registered mail with notification a duly executed copy of this employment contract on paper.

Step 4. Issuance of an order for hiring a remote worker

Hiring a remote worker is formalized by an order that has two features:

• in the line "Conditions of employment, nature of work" you must write "Remote work";
• if the interaction between the employee and the employer is carried out by exchanging electronic documents with digital signatures, then the order is also sent in electronic form and the employee will have to sign it with an enhanced qualified electronic signature.

Step 5. Maintaining a work book of a remote worker

It has already been said above that information about remote work may not be entered in the work book of a remote worker if an agreement is reached between the parties. This condition can be written in the employment contract. In other cases, when filling out a work book, it is necessary to be guided by the Decree of the Government of the Russian Federation "On work books" dated 04.16.2003 No. 225 and the Decree of the Ministry of Labor of Russia "On approval of the Instruction for filling out work books" dated 10.10.2003 No. 69.

In the work book, information about the nature of teleworking is not written.

Step 6. Filling in the personal card of the teleworker

A personal T-2 card is also filled out for a remote worker. The Labor Code of the Russian Federation does not provide for any peculiarities governing the procedure for filling it out.

The unified form of a personal card implies the affixing of the employee's signature when it is issued. If a remote worker is hired, the employer should send him a formalized personal card in electronic form. The employee must sign it with an enhanced qualified electronic signature and send it back to the employer.

When an employee and an employer interact in electronic form using an enhanced qualified electronic signature, each of the parties (both the employee and the employer) is obliged to send a notification of receipt electronic document... The period within which such a notification must be sent is determined by the employee and the employer in the employment contract.

So, the procedure for hiring a remote worker is disassembled step by step. However, there are still several important nuances regarding the labor relationship with a teleworker. They will be discussed further.

Transfer of a certificate of incapacity for work to a teleworker

How can an employee transfer a certificate of incapacity for work in case of his illness? In accordance with Art. 312.1 of the Labor Code of the Russian Federation for the purpose of granting benefits, the employee sends a certificate of incapacity for work by registered mail with notification.

Issuance of copies of documents to a remote worker

If a telecommuter submits an application for the issuance of duly certified copies of work-related documents, the employer no later than 3 working days from the date of submission said statement is obliged to send him these copies:

• by registered mail with notification; or
• in the form of an electronic document, if it was indicated in the application.

Dismissal of a teleworker

Upon dismissal of a remote worker, an order to terminate (terminate) labor relations can be issued in the form of an electronic document. In this case, on the day of termination of this employment contract, the employer is obliged to send the remote worker by registered mail with notification a duly executed copy of the said order (instruction) on paper.

1. The most important thing for an employer is to correctly determine what kind of work will be truly remote. For example, if it is important for the employer to restrict the territory of the employee's work function, as is often the case with regional representatives, this no longer falls under the concept of teleworking.
2. Particular attention must be paid to the terms of the employment contract in terms of providing the employee with the necessary programs and detailed description job responsibilities.
3. It is possible to register an employee for remote work by exchanging electronic documents only if he is not able to come to the employer. For registration from the employee you will need an enhanced qualified signature.

Otherwise, formalizing an employment relationship with a teleworker is a common personnel procedure.

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Telecommuting has been gaining popularity in recent years, and chapter 49.1 was added to the Labor Code to regulate the reception of teleworkers.

Such a person must be admitted to the staff in accordance with the Labor Code of the Russian Federation, an employment contract is concluded with him, the necessary personnel documentation is drawn up, he has the right to labor guarantees, vacation, sick pay.

Below is the step-by-step instruction for personnel officers, which will help in competent registration for work remotely.

A remote worker is a person who performs labor functions, according to the instructions for the position, outside the location of the employer's organization.

At the same time, there is no direct control of the chief over the remote subordinate due to the remoteness of these persons from each other.

Communication between the employer and the remote worker is carried out by telephone, e-mail, the Internet, postal services.

When hiring such persons, you need to rely on Chapter 49.1 of the Labor Code of the Russian Federation.

If an employee is not accepted to the organization remotely, then the step-by-step instructions for applying for employment look like.

• article 312.1 - the concept of teleworking and a remote worker;
• article 312.2 - issues related to the conclusion and amendment of the employment contract;
• article 312.3 - organization of labor of persons working remotely;
• article 312.4 - work and rest time;
• article 312.5 - the procedure for dismissal.

Step-by-step instructions for applying for a job remotely

If we consider step by step the procedure for hiring remote employees, then the following steps can be distinguished:

In some cases, this step-by-step instruction may include additional steps, however, in general, the procedure is governed by the specified order.

At the same time, the employer must strictly comply with the requirements of Chapter 49.1 of the Labor Code of the Russian Federation, which specifies the specifics of the procedure for employment for remote work.

What documents are needed?

The package of documentation required for registration of employment for remote work is standard. The list is spelled out in article 65 of the Labor Code of the Russian Federation and includes the following papers:

• a statement from the employee - only if the employer himself needs it due to any internal needs and the established procedure;
• passport;
• educational documents, if the profession requires special knowledge;
• military card for those liable for military service or subject to conscription;
• employment historyif you need to make a record of employment;
• SNILS.

If a remote worker does not have SNILS, then he must receive it on his own due to the distance from the place of work.

The exchange of documents between a remote employee and an employer can be done by postal service (documents and their certified copies are sent by registered mail) or by electronic document management... The latter is possible if both parties have an enhanced qualified electronic signature.

Initially, the specified set of documents must be sent in electronic form, then, if requested by the employer, they must be sent in original on paper through a certified letter with a list of attachments and a receipt acknowledgment.

Features of the conclusion of an employment contract

After receiving documentation from a citizen, the employer is obliged to draw up an employment contract that will take into account the specifics of remote work.

The electronic version of the contract is sent to the employee in two copies, after signing one copy is returned to the employer.

Thereafter, within three days, the employer is obliged to send the paper original to the teleworker using a registered letter.

What should be in labor agreement about remote work:

• it should be clearly indicated that work is carried out remotely from the employer;
• the time frame for sending electronic documents confirming the received papers, sent by each of the parties to each other, that is, the procedure for exchanging documents between a remote employee and an employer is described;
• mode and work schedule - can be strictly regulated, it is possible to establish your own schedule;
• method of sending reports by a remote employee about the work done, the frequency of sending reports;
• the procedure for providing the employer with the necessary equipment for work, hardware and software;
• additional guarantees provided related to remote work - payment for communication, Internet, etc.

Sample order of admission

The next step in the step-by-step procedure is filling out the order for employment, for this it is recommended to use the unified form T-1.

The order is drawn up in a standard way, while in the field "working conditions" it should be indicated that the work is remote in nature.

Familiarization with the internal acts of the organization

The familiarization procedure is necessarily carried out, despite the fact that the employee will work remotely, that is, remotely from the location of the employer's organization.

The employee should electronically send the following documents:

• internal rules work schedule;
• collective agreement, if any;
• job description;
• other available local acts related to the activity.

The fact of acquaintance is confirmed by placing a signature in the required place.

Do I need to fill out a work book?

This issue is resolved at the request of the employee. If he wants an entry in the work book to be made, then it must be sent by registered mail to the employer, and the latter is obliged to make a record of the admission.

If a person does not need this record, then the work book is not presented, and information about employment is not entered.

Work experience confirms the concluded contract.

How to keep track of the time sheet?

Every employer must keep a time sheet, it either records deviations from the normal working day, or reflects daily actual information about the employee.

How to reflect information about work remotely in the timesheet, if there is no way to control its workflow?

• weekend designate as B or 26;
• the paid main leave shall be designated in the report card as OT or 09;
• sick leave - B or 19.

The days of carrying out work duties in the report card should not be indicated in any way. Empty cells will automatically be perceived as attendance, that is, a fully worked day without any deviations.

Useful video

The development of technology and means of communication has led to the fact that many workers no longer need to be in the office to perform their work function. So, outside the office, lawyers, accountants, designers, IT specialists and even sales specialists may well work if telemarketing is used. Not so long ago, this fact was recognized by lawmakers, fixing certain rules for remote work in the Labor Code. How to properly register such employees? Is it possible to transfer current workers to remote control? What "pitfalls" can an accountant come across in connection with remote work of employees? We will answer these and other questions in this article.

What is the benefit

Remote work is convenient both for an employee who does not need to spend time, money and effort on daily trips to the office, and for an employer who can not only save on the costs of organizing a stationary workplace (rent, communication, equipment, programs, support ), but also more flexible approach to staff recruitment. After all, a remote worker can work not only outside the office, but also from another city and even from another country. Behavioral stereotypes of young employees, who are initially more focused on working outside the office, fall on the same scale.

All these factors, taken together, lead to the increasing popularity of teleworking. But until recently, the legislation avoided such a phenomenon as “teleworking”, and employers were forced to invent various “schemes”. But last year, Federal Law No. 60-FZ of 05.04.13, the Labor Code was finally supplemented by a new one, dedicated to the specifics of labor regulation of teleworkers.

What is the difference from home work

The first thing that should be paid attention to when studying the provisions of the new chapter of the Labor Code of the Russian Federation is the difference between a "distance operator" from a homeworker. After all, the regulation of home work in the Labor Code of the Russian Federation was originally, but in practice these norms were not applied to formalize relations with those who do not sit in the office "from nine to six". And that's why.

Firstly, the norms on homeworkers are designed in such a way that they regulate labor activity of a production nature. This conclusion follows already from the definition given in the Labor Code of the Russian Federation: a homeworker is a person who has entered into an employment contract for performing work at home from materials and using tools and mechanisms allocated by the employer or purchased by the homeworker at his own expense. Those. it is about something material created by the hands of an employee. It's not easy to apply this article to a lawyer, accountant, site editor or designer.

Secondly, a homeworker, according to the Labor Code of the Russian Federation, is a full-fledged employee, in respect of whom all procedures stipulated by the Code must be followed (full registration, equipment of the workplace, ensuring its safety and fulfilling labor protection requirements, etc.). And this is impossible in a situation with a remote worker. It is not always possible to meet with him once to conclude a contract.

The legislator tried to eliminate these shortcomings by adopting rules on remote work. The Code now clearly states that a teleworker performs a job function. At the same time, he performs it outside the location of the employer (branch, representative office, other separate structural unit) and even outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer. The interaction between the employee and the employer takes place over public telecommunication networks, including via the Internet (Labor Code of the Russian Federation). As a general rule, an employee independently provides himself with a workplace and equipment.

Remote worker does not need to pass medical checkup, an employment contract with him can be concluded and terminated in electronic form. Finally, the "remote operator" does not have to make an entry in the work book, pay overtime work and ensure labor safety to the full. In general, the conditions are much more realistic to fulfill than the rules for homeworkers.

How to draw up a contract correctly

Let's move from theory to practice. First of all, we will consider what wording should be included in the employment contract if it is planned that the employee will work remotely.
So, in the contract it is necessary to indicate the nature of the work. For example, it can be the following wording: "The employee performs the labor function provided for by this employment contract outside the employer's location (remotely)." The place of work, we indicate the address of the employee (or another address at his request) - this is required by the Labor Code of the Russian Federation. It is also required to indicate the mode of operation, since the Labor Code of the Russian Federation does not make exceptions for remote work. Here the wording will be standard: “The employee is set a normal working time - 40 hours a week, a five-day working week with two days off - Saturday and Sunday, the duration daily work - 8 ocloc'k".

Further, in the contract, you need to fix the provisions regarding the subordination of the employee to the rules of the internal labor schedule (Labor Code of the Russian Federation). Here we recommend the following wording: "The employee is subject to the Internal Labor Regulations in the part that does not contradict the essence of the terms of this employment contract on remote work."

The contract must establish the procedure for providing the employee with various resources. Thus, it can be indicated that "the employee independently provides himself with a computer, telephone communication and access to the Internet." And you can impose a similar obligation on the employer: "Not later than 5 working days from the date of the conclusion of this employment contract, the employer undertakes to provide the employee with a computer, telephone, and provide an Internet connection." The third option is to record the employer's obligation to reimburse the employee's expenses for equipment and (or) payment for telephone and Internet. For example, as follows: “The employer undertakes, no later than the fifth day of each month, to compensate the employee's expenses for paying bills for the Internet and mobile phone at actual costs, but not more than 10 thousand rubles per month. Compensation is paid in accordance with the Regulation on the compensation of expenses for employees employed outside the employer's location (remotely), approved by the employer. "

Finally, in the contract, it is necessary to fix the terms and procedure for the delivery of work, as well as the procedure and frequency of communications with the employer, indicating the email addresses to which the employee must send all his messages to the employer.

What to write in the Timesheet

The employer's obligation to record the time actually worked by each employee (part 4 of the Labor Code of the Russian Federation) in connection with remote work is not canceled. In our opinion, the report card for the "remote operator" can be filled in as follows: on weekdays, turn up (code "I" or "01"), on weekends and holidays - rest (code "B" or "26"). We set the number of hours worked in accordance with the employment contract.

You can go the other way, fixing in the employment contract that the employee distributes working time and rest time at his own discretion (the option provided by the Labor Code of the Russian Federation as the main one), and notifies the employer about the work schedule in writing. In this case, you can fill out the Timesheet based on employee reports. But this option is not legally regulated, so we would not recommend applying it everywhere. Moreover, this may entail tax problems (see below the question about compensation).

Transfer an employee to remote control

Not only new employees can be hired for remote work, but also “existing” employees can be transferred. To do this, you need to compose supplementary agreement to the employment contract. The subject of this agreement is to change the nature of labor. Accordingly, you include in the agreement all the wording regarding the new labor regime that we have given above. Be sure to include the date from which the new operating procedure applies.

"Remote" business trip

The next interesting point that an accountant may face is the payment of travel allowances to a remote employee. For example, a “remote” lawyer can travel to other cities to participate in the consideration of a case, or attend various seminars and forums. A logical question arises: can an employee working remotely have business trips? And, accordingly, will the tax authorities accept such expenses?

By virtue of the Tax Code of the Russian Federation, remote workers are subject to labor legislation and other regulatory legal acts containing norms labor law, taking into account the specifics established by Chapter 49.1 of the Labor Code of the Russian Federation. This chapter does not contain any exceptions for a business trip. Thus, the employer can send a teleworker on a business trip. And, accordingly, take into account all related expenses in taxation.

Whether to register a separate subdivision

Let's note one more point important for an accountant: hiring an employee for remote work is guaranteed not to entail the formation of a separate division. Indeed, the Labor Code explicitly states that such work is performed outside a separate structural unit (including those located in another area), outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer. And according to the Tax Code a stand-alone unit organization is any subdivision geographically separate from it, at the location of which stationary workplaces are equipped.
As you can see, these two definitions directly contradict each other. So there is no question of registering a unit in this case.

Accounting for compensation

The Labor Code provides for the possibility of establishing compensation for teleworkers related to the use of personal property to perform work. Moreover, you can compensate not only the costs of communication and the Internet, but also pay for the "depreciation" of a computer, tablet and other equipment. It is important here that this condition is fixed precisely in the employment contract, and not in a separate document ( memo with a visa or order), as permitted by the Labor Code of the Russian Federation in relation to ordinary workers.

Another nuance is associated with the distribution of reimbursable costs incurred in connection with the performance of labor duties and outside them. For expenses in the form subscription fee such distribution can be carried out on the basis of the ratio of the number of working hours and total hours in the period. These data, of course, need to be taken from the employment contract and the Timesheet.

For expenses that can be clearly attributed to a particular time (payment of communication costs, for example, or for payment of certain programs, access, etc.), it is also important for the employer to know whether this or that expense was made during working hours. But in conditions when the employee himself determines the mode of working time and rest time, this is difficult to do. Accordingly, you need to either demand from the employee an appropriate report and save it in the accounting department, or establish a clear duration of working hours in the employment contract.

ST 312.2 of the Labor Code of the Russian Federation.

An employment contract for teleworking and agreements on changing the terms of an employment contract for teleworking determined by the parties may be concluded through the exchange of electronic documents. At the same time, the location of the employer is indicated as the place of conclusion of the labor agreement on remote work, agreements on changing the terms of the labor agreement on remote work determined by the parties.

In the event that an employment contract for remote work is concluded through the exchange of electronic documents, the employer, no later than three calendar days from the date of conclusion of this employment contract, is obliged to send the remote worker by registered mail with notification a duly executed copy of this employment contract on paper.

When concluding an employment contract on remote work by exchanging electronic documents, the documents provided for in Article 65 of this Code may be presented to the employer by a person applying for remote work in the form of an electronic document. At the request of the employer, this person is obliged to send him by registered mail with notification, notarized copies these documents on paper.

If an employment contract for telecommuting is concluded by exchanging electronic documents by a person entering into an employment contract for the first time, this person receives a document confirming registration in the individual (personified) accounting system, including in the form of an electronic document, independently.

Familiarization of the person concluding an employment contract on remote work with the documents provided for in part three of Article 68 of this Code may be carried out by exchanging electronic documents.

By agreement of the parties to an employment contract on remote work, information about remote work may not be entered into the work book of a remote worker, and when concluding an employment contract for the first time, a work book may not be issued to a remote worker. In these cases, the main document on the labor activity and work experience of a remote worker is a copy of the employment contract on remote work, specified in part two of this article.

In the absence of the agreement specified in part six of this article, the remote worker provides the employer with the work book in person or sends it by registered mail with notification.

In an employment contract for remote work, in addition to additional conditions that do not worsen the employee's position in comparison with the established labor legislation and other regulatory legal actscontaining labor law norms, collective bargaining agreements, agreements, local regulations (part four of Article 57 of this Code), an additional condition may be provided on the obligation of a remote worker to use equipment, software and hardware in the performance of his duties under an employment contract on remote work, information protection means and other means provided or recommended by the employer.

Commentary on Art. 312.2 of the Labor Code of the Russian Federation

1. The commented article fixes the peculiarities of concluding and changing the terms of an employment contract for remote work.

As for all employees, the basis for the emergence of an employment relationship between an employer and a teleworker is the conclusion of an employment contract, in this case, a teleworking contract. The law determines that an employment contract for teleworking and agreements on changing the terms of an employment contract for teleworking determined by the parties may be concluded through the exchange of electronic documents. At the same time, the location of the employer is indicated as the place of conclusion of the labor agreement on remote work, agreements on changing the terms of the labor agreement on remote work determined by the parties.

As a rule, the signing of an employment contract is preceded by negotiations on the conclusion of such an agreement, after which the employee sends the employer electronic copies of the documents provided for in Art. 65 of the Labor Code of the Russian Federation, namely: a passport, work book, insurance certificate of state pension insurance, etc. The law provides that copies of these documents that will be kept by the employer must be notarized. Thus, the employer, concluding an employment contract for teleworking, must warn the employee about this.

A novelty of this chapter is the provision that a remote worker may not show the employer a work book if he writes to him a statement that he asks not to make a record of remote work in it. If the employee starts work for the first time, he can also ask the employer not to draw up a work book.

In addition, if an employment contract for teleworking is concluded through the exchange of electronic documents by a person entering into an employment contract for the first time, this person receives an insurance certificate of compulsory pension insurance independently.

After receiving the documents and upon reaching the agreement of both parties to the employment contract, the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement.

The legislator does not provide for the form in which this can be done; he only indicates that such acquaintance should be carried out through the exchange of electronic documents. However, other methods are also possible: providing access to a special page on the employer's website, referring to e-mail scanned documents, etc. In any case, the text of the employment contract must contain a record that the employee, before signing the employment contract, read all the necessary documents against signature.

2. Since hR administration is carried out by the employer in paper form, and also due to the fact that an employment contract on remote work may be the only document confirming the fact of work for this employer and the existence of work experience, the employer must send a remote to the employee by registered mail with notification a duly executed copy of this employment contract on paper.

In practice, obtaining an enhanced qualified electronic signature is a rather complicated procedure, therefore, in real life an employment contract with a teleworker is concluded in the following order: the employer sends the employee by mail documents that must be signed, which are subsequently returned to the employer. There has even been a practice of sending special notification sheets to remote workers, by signing which, the employee confirms that he has familiarized himself with all the documents provided for.

In other words, until the moment when all personnel office work is not carried out in electronic form, the volume of paperwork related to the registration of labor relations of remote workers will not decrease.

In an employment contract, first of all, its type must be indicated: the contract is a contract for remote work. In addition, it indicates: 1) the surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract; 2) information about the identity documents of the employee and employer - an individual; 3) taxpayer identification number (for employers, with the exception of employers who are individuals who are not individual entrepreneurs); 4) information about the representative of the employer who signed the employment contract, and the basis on which he is vested with the appropriate powers; 5) the place and date of the conclusion of the employment contract. At the same time, the location of the employer is indicated as the place of conclusion of the contract, and information about the place of work in which the remote worker directly performs the duties assigned to him by the employment contract is indicated as the place of work.

The following conditions are mandatory for inclusion in an employment contract:

1) labor function (work according to the position in accordance with staffing table, profession, specialty indicating qualifications; specific species the work assigned to the employee). If, in accordance with the Labor Code of the Russian Federation, other federal laws, the provision of compensation and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements to them must comply with the names and requirements specified in qualification reference booksapproved in accordance with the procedure established by the Government of the Russian Federation, or the corresponding provisions of professional standards;

2) the date of commencement of work, and in the case when a fixed-term employment contract is concluded - also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code or other federal law.

Chapter 49.1 does not contain any provisions regarding the duration of an employment contract with an employee who has entered into a teleworking contract. This makes it possible to apply to this type of contracts the provisions according to which a fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance, namely in the cases provided for. In the cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded by agreement of the parties to the employment contract without taking into account the nature of the work ahead and the conditions for its implementation.

In other words, as a general rule, labor contracts for an indefinite period must be concluded with teleworkers;

3) conditions of remuneration (including the size of the tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments). Since teleworkers organize their work themselves, all work is paid to them in a single amount;

4) working hours and rest hours (if for this employee it differs from general rulesof the employer). According to, unless otherwise provided in the employment contract. In this regard, in an employment contract with a remote worker, it is advisable to fix the mode of his work (for example, a five-day working week with two days off; working hours; the time when the employee must be in contact with the employer; deadlines for specific assignments). If there is no need to interact with a remote worker online, you can set a different working time regime (for example, a working week with a flexible weekend schedule).

The condition on compulsory social insurance of the employee in accordance with the Labor Code and other federal laws should also be included in the contract on remote work.

An employment contract may provide for additional conditions that do not worsen the employee's position in comparison with the established labor legislation and other regulatory legal acts containing labor law, collective agreement, agreements, local regulatory acts, in particular: on testing; on non-disclosure of secrets protected by law (state, official, commercial and other); on the employee's obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer; on the types and conditions of additional insurance for the employee; on improving the social and living conditions of the employee and his family members; on clarification, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer, established by labor legislation and other regulatory legal acts containing labor law norms; on additional non-state pension provision for the employee.

By agreement of the parties, the labor agreement on teleworking may include the following conditions: 1) on the procedure for making entries in the work book (part 6 of article 312.2 of the Labor Code of the Russian Federation); 2) on the procedure and terms of providing a remote worker necessary equipment, software and hardware, information security tools and other means; 3) on the procedure and terms for submission of reports on the work performed by remote workers; 4) on the amount, procedure and timing of payment of compensation for the use by a remote worker of his or her leased equipment, software and hardware, information security and other means; 5) on additional grounds for terminating the employment contract.

In addition, it is advisable to include issues related to the timing of confirmation of electronic documents, deadlines for submitting reports on the work done, the procedure for providing information, etc.

Depending on the specific circumstances, it is possible to include in the labor agreement on remote work and other conditions that do not contradict the Labor Code of the Russian Federation.

THIS ARTICLE REPRESENTS THE CHAPTER OF THE BOOK OF AVAR LABOR LAW OF RUSSIA

The new law introduces major changes to Russian labor law. Now there is a legal opportunity to organize remote work employee at his home. Earlier, the Labor Code provided for the so-called “work from home”, but the conditions for its application were very limited and in reality could not be applied in a situation when an employee was hired to work remotely at home or in another place remote from the office. The old rules on home work, which are still in force, regulate the situation in which an employee performs duties related to the production of consumer and craft goods from materials and using the employer's tools or purchased with the employee's funds. Thus, these rules could not be applied to regulate the work of various categories of workers. In Russia, there was an urgent need to regulate remote work for such categories of workers as IT specialists, sales representatives, consultants, translators, etc. The changes provide an opportunity to legally establish relationships with such workers.

Under the new law, telecommuting is the performance of work duties outside the location of the employer, its branch, representative office or other place under the control of the employer. The new law indicates the need to organize communication through the use of information and telecommunication networks, including the Internet, to perform work and interact with the employer. An important provision of the new law is a provision stating that the presence of a remote worker does not entail the employer's obligation to register a separate structural subdivision.

Teleworking regulations provide opportunities for more flexible labor regulation. For example, they allow you to provide special conditions termination of the employment contract.

Below we describe in more detail the innovations in teleworking and briefly name the close modes of work at home and shift work, as well as the ability to conclude civil law contracts instead of employment contracts.

Remote work

RF President signed the federal law on amending Labor Codeintroducing new chapter about remote work. It entered into force on April 8, 2013.

Remote work is understood as the performance of work duties outside the location of the employer, its branch, representative office or other place under the control of the employer.

A prerequisite for teleworking is the use of information and telecommunication networks, including the Internet, to perform work and interact with the employer.

An important point of the new law is the provision that the presence of a remote worker does not entail the employer's obligation to register a separate structural unit for this purpose. This conclusion can be drawn from the provision of the legislation that a separate structural unit must be registered with the tax authorities if the employer organizes stationary jobs in a geographic area remote from its location (Articles 81.1 and 11.2 of the Tax Code of the Russian Federation) at a time when under for a remote worker, a stationary workplace is not organized. Labor regulation of teleworkers has some peculiarities. In the interaction between the teleworker or teleworker candidate and the employer, enhanced skilled workers are used in the exchange of electronic documents. electronic signatures... However, this provision becomes binding only by agreement of the parties. If such an agreement has not been reached, the parties can use the paper form of documents (Article 312.1 of the Labor Code of the Russian Federation).

When concluding a contract, a teleworking clause must be included in the employment contract with the employee. The contract may provide for an additional condition on the obligation of a remote worker to use equipment, software and hardware tools, information security tools and other means provided or recommended by the employer in the performance of his duties.

An employment contract must provide for the following conditions:

Procedures and conditions for the use of equipment, software and hardware, information security and other means provided or recommended by the employer;

Procedures and conditions for reporting on the work performed;

Conditions on compensation for the use of equipment, software and hardware, information security and other means belonging to the employee;

Rules for compensation for other costs that the employee incurs in connection with the performance of remote work.

Obligations of the employer to ensure safe environment and labor protection of teleworkers are distributed to a limited extent. Unless otherwise provided for by an employment contract on remote work, the mode of working time and rest time for a remote worker is established by him at his own discretion.

An employment contract and agreements to amend the terms of an employment contract can be concluded through the exchange of electronic documents. In this case, the location of the employer shall be indicated as the place of conclusion of an employment contract for remote work, agreements on changing the terms of an employment contract for remote work. The employer, no later than three calendar days from the date of the conclusion of the employment contract, is obliged to send the remote worker by registered mail with notification a duly executed copy of this employment contract on paper. Sending documents presented when concluding an employment contract in accordance with Art. 65 of the Labor Code of the Russian Federation is carried out by sending their copies by electronic documents. However, at the request of the employer, the applicant is obliged to send him by registered mail with notification, notarized copies of these documents in hard copy.

An employee's acquaintance with documents related to work, including local regulations and orders of the employer, provided for by the Labor Code of the Russian Federation, can occur through the exchange of electronic documents. In addition, in cases where, in accordance with the Labor Code of the Russian Federation, an employee has the right or is obliged to apply to the employer with an application, provide the employer with explanations or other information, a remote employee can do this in the form of an electronic document. By agreement of the parties, information about remote work is not entered in the work book, and the work book is not issued to a person who first got a job.

The parties also have the right to conclude an employment contract for remote work without using electronic documents in the traditional manner. In this case, the contract indicates the place of the actual conclusion of the contract. The applicant submits the original documents presented at the conclusion of the employment contract. In addition, in this case, the employer retains the obligation to issue a certificate of state pension insurance for a remote worker who takes a job for the first time. The employee also has the right to require the proper registration of the work book.

Remote work in some cases requires the proper execution of written documents that are sent by mail registered letters with notification. The employer, even if an employment contract is concluded through the exchange of electronic documents, is obliged to send the remote worker a duly executed copy of this employment contract on paper. To provide compulsory insurance coverage for compulsory social insurance in case of temporary disability and in connection with maternity, the teleworker sends the employer the originals of the necessary documents.

Upon termination of the employment contract, even if familiarization with the dismissal order is provided in the form of an electronic document, the employer on the day of termination of this employment contract is obliged to send the remote worker a duly executed copy of the said order on paper. In other cases, the use of paper media is optional.

The parties may provide for special conditions for termination of the employment contract in the labor contract for remote work (as well as when working at home), not limited to the corresponding list of the Labor Code of the Russian Federation.

Work at home In addition to the new provisions on distance work, the Labor Code contains provisions on the so-called “home work” (Chapter 49 of the Labor Code of the Russian Federation). However, the conditions for its application are rather limited and in reality cannot be applied in a situation where an employee is hired to work remotely at home or in another place remote from the office. The Home Work Regulations, which are still in force, regulate the situation in which an employee performs duties related to the production of consumer and craft goods from materials and using the employer's tools or purchased with the employee's funds. Thus, these rules could not be applied to regulate the work of various categories of workers.

Home work is regulated general rules; however, there are some peculiarities. A homeworker can involve his family members in work, but no labor relations arise between them and the “employer” (Article 310 of the Labor Code of the Russian Federation).

In an employment contract for the performance of work at home, the employer and the employee agree on which of the parties provides the equipment and materials necessary for the work. If the homeworker uses his own materials or equipment, the employer is obliged to pay compensation for wear and tear.

An employment contract for home work must contain the procedure for calculating with a homeworker for work performed.

When working at home, health and safety regulations must be followed.

The norms of the legislation on home work provide for the need to specifically establish in the contract the grounds for its termination (Article 312 of the Labor Code of the Russian Federation).

Job on a rotational basis

Work on a rotational basis is a form of implementation labor processwhen workers are at a considerable distance from their place of permanent residence and due to geographical conditions, their daily return to their place of residence cannot be ensured (Chapter 47 of the Labor Code of the Russian Federation). This form of labor is used in cases when work is carried out in sparsely populated areas with difficult natural conditions. Shift workers must return home at least once a month, and in exceptional cases - once every three months (Article 299 of the Labor Code of the Russian Federation).

With this form of labor, working hours, days, rest time, etc. are accounted for in a special order, which is called the summarized accounting of working hours (Article 300 of the Labor Code of the Russian Federation). When working on a rotational basis, all the time spent at a remote workplace is taken into account. In any case, the total working hours must not exceed the normal number of working hours.

Civil law regulation of labor

An individual in Russia can provide services and perform work both under an employment contract, in this case, relations with an employer are governed by labor law, and under a civil contract in accordance with civil law.

The concept of a civil contract is reduced to an agreement in accordance with which a company uses the services of an individual without intending to enter into an employment contract with him. The main difference between a civil law contract and a labor contract is that the employee is not entitled to use the guarantees provided for by labor law (protection against unilateral cancellation of the contract, norms on work outside working hours, sick leave and vacation pay), and does not obey the internal labor regulations customer.

Civil contracts are used when a person is hired temporarily on a project or occasionally performs additional work, which is usually not performed by employees of the organization. One of the most common cases is the conclusion of a civil contract with freelance translators.

When concluding a civil law contract, the parties are guided by the norms of civil law, which provide for equality of the parties and freedom of contract. Nevertheless, certain restrictions are imposed by the peremptory norms of Chapters 37 and 39 of the Civil Code of the Russian Federation. In particular, the parties are obliged to agree on a specific subject of the contract, which must be spelled out in detail in such an agreement, indicating its volume and quality. In addition, it is necessary to indicate the date of performance of work (for a contract for the provision of paid services) and the date of commencement and completion of work (for a work contract). A prerequisite is the determination of the contract price and the procedure for payment of remuneration.

In most cases, the main reason for concluding a civil law contract is the desire of the parties to avoid the operation of labor law. However, if there is a real labor relationship between the parties, and the employee carries out labor activities in accordance with the labor schedule and on the territory of the employer, then the employer bears the risk of the court retraining the civil contract into an employment contract in accordance with Art. 11 of the Labor Code of the Russian Federation. Currently, there is a large arbitrage practice on the application of this article. As a rule, if there is evidence of an employment relationship, the court resolves such cases in favor of the employee.

When retraining relations, the courts take into account a set of criteria, among which the following can be distinguished:

1) Systematic renegotiation of civil law contracts or the extension of their validity, for example, in the Resolution of the Federal Antimonopoly Service of the Moscow District of 28.08.2008 N KA-A40 / 7019-08 in case N A40-59304 / 07-90-332.

2) Submission of the employee to the internal labor regulations, for example, in the Resolution of the Federal Antimonopoly Service of the Moscow District of 06/19/2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271 or the Resolution of the FAS of the Moscow District of 11/13/2008 N KA-A40 / 10488-08 in case No. A40-59261 / 07-14-314.

3) Dates and frequency of payment of remuneration, for example, in the Resolution of the Federal Antimonopoly Service of the Moscow District of June 19, 2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271.

4) The relationship of payment under the contract with the volume and frequency of work performed, for example, in the Resolution of the Federal Antimonopoly Service of the Moscow District of June 19, 2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271.

Thus, despite the fact that civil law contracts are not the basis for the emergence of labor relations, in some cases they are able to regulate the performance of work natural person, which acts as an equal and independent party to the agreement.

Civil law contracts can be concluded, including with individual entrepreneurs. If such an entrepreneur provides services in accordance with his type of activity, the risk of retraining the contract in labor is significantly reduced.