The concept of remote work appeared in Russian labor legislation in 2013, when a new one was introduced into the Labor Code, dedicated to the regulation of the work of remote workers.

The location of the employer is indicated as the place of conclusion of the employment contract on remote work.

What documents are needed

To conclude an employment contract on remote work, documents are required Art. 65 of the Labor Code of the Russian Federation:

passport or other identity document;
(with the exception of cases when an employment contract is concluded for the first time or an employee goes to work on conditions);
state pension insurance;
documents - 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;
other additional documents (taking into account the specifics of the activity).

When concluding an agreement by exchanging electronic documents, a person applying for remote work can present these documents to the employer in electronic form. However, at the request of the employer, he is obliged to send him by registered mail with notification notarized copies of these documents on paper.

What to include in the contract

When concluding an employment contract for remote work, in addition to the general requirements established by Art. 57 of the Labor Code of the Russian Federation, the following conditions must be met:

about the remote nature of the work;
on the forms and period during which each of the parties is obliged to send to the other party confirmation of receipt of electronic documents (tasks, reports, etc.) from it;
about the obligation of the employee to use the equipment provided or recommended by the employer, software and hardware, information security tools, etc. or the employee's ability to use his own (rented) equipment and software and hardware.

Place of work and working hours

Teleworkers have a place of work in the legal sense of this definition, established Art. 209 of the Labor Code of the Russian Federation, absent. However, due to the fact that regulatory authorities often have a different opinion, it is advisable to indicate in the employment contract that the workplace is the location of the employee - and this will always be true, even if the employee is on the beach.

In accordance with the law, unless otherwise provided by the employment contract, the regime of working time and rest time of a remote worker is established by him at his own discretion. Therefore, if you need an employee to be available on certain days and hours, this must be reflected in the contract. Or you can limit yourself to a general phrase: set an employee, for example, a 40-hour five-day work week, with two days off, indicating which days are considered working and which days off.

The procedure for granting annual paid leave and other types of leave for a remote employee is the same as for other employees.

Employer's obligations

In relation to remote workers, the employer must pay for accidents, investigate occupational diseases, and comply with the instructions of the state labor inspectorate (if any).

When an employee uses equipment provided or recommended by the employer, the employer is obliged to familiarize the employee with how to work with this equipment.

An employment contract may provide for the payment of compensation for the use by a remote worker of equipment belonging to him or rented, software and hardware, information security tools and other means.

When a remote worker submits an application for the issuance of duly certified copies of documents related to work ( Art. 62 of the Labor Code of the Russian Federation) the employer, no later than three working days from the date of filing such an application, is obliged to send these copies to the employee by registered mail with notification or, if indicated in the application, in the form of an electronic document.

Sample employment contract with a remote worker

Employment book, time sheet and sick leave for a "remote worker"

By agreement between the employee and the employer, information about remote work may not be entered in the work book, and when concluding an agreement for the first time, a work book for a “remote worker” may not be issued. In these cases, the main document on the professional activity of a remote worker will be the contract concluded with the employer.

In accordance with part 4 Art. 91 Labor Code of the Russian Federation the employer is obliged to keep records of the time actually worked by each employee. At the same time, legislation does not provide for exceptions for remote workers, therefore, they also need to be conducted. Taking into account the specifics of remote work, it is clear that keeping a time sheet for such an employee will be very formal, but it will be required, among other things, for the correct calculation of wages, vacation pay and other payments.

The law establishes that in order to receive payments for compulsory social insurance in case of temporary disability and in connection with motherhood, a remote worker sends the employer the originals of the relevant documents by registered mail with notification. However, if the employee decides to provide these documents personally, then this will not be a violation either.

Grounds for dismissal

In addition to the general grounds for dismissal provided for by law, termination of an employment contract on remote work at the initiative of the employer can be carried out on the grounds provided for by the contract itself.

If the “remote worker” is familiarized with the dismissal order in the form of an electronic document, the employer, on the day the employment contract is terminated, is obliged to send the remote worker by registered mail with notification a duly executed copy of the specified order on paper.

Employment contract with a remote worker- sample 2017-2018 is attached to this article - a document that must contain a reference to agreements on the implementation of work outside the workplace created by the employer and controlled by him. Consider the features of the design of such an agreement.

Labor legislation on remote work

Remote work implies that the work performed by the employee is carried out by him in a place that is not created and controlled by the employer. The current version of the Labor Code of the Russian Federation describes 2 options for such work:

home-based (Chapter 49), in which the place of work for the employee is defined as the place of his residence;
remote (chapter 49.1), when the place of work is not established and the employee has the right to choose it himself.

Both options have a lot in common:

the relationship between the remote employee and the employer is based on the same provisions of the Labor Code of the Russian Federation that apply to ordinary workers, taking into account the peculiarities that arise due to the special nature of remote work;
the employee may not appear at the location of the employer or be there occasionally as needed, but is considered to be at work;
the time spent on work is not controlled by the employer, and the employee can regulate the periods of work and rest;
the volume of work assigned to the employee should provide him with the opportunity to comply with the length of working hours established by law and alternate periods of work and rest;
means of labor involved in the performance of work may belong to both the employee and the employer;
the employee is entitled to compensation for expenses incurred by him in the process of performing work, including for the use of property belonging to him;
the procedure for interaction is specifically stipulated for transferring a work assignment to an employee and receiving labor results from him;
for the employer, the list of his duties in relation to the employee in terms of labor protection issues is limited to briefing, providing medical care and the need to investigate an accident with the employee, if any, while he must provide homeworkers with special protection equipment and control their working conditions;
special grounds for dismissal may be included in the employment contract.

Differences in the relationship with a remote worker and with a homeworker

In addition to the general, there are a number of significant differences between home and remote work:

a homeworker is tied to a specific place where work is performed, while a remote worker can perform work in any place convenient for him;
the homeworker is allowed to involve members of his family in the work, and the remote worker does the work himself;
the homeworker creates things of a material nature that require an investment in them of initial material costs, and remote work leads to the creation of intellectual products;
working as a homeworker requires direct interaction with the employer when receiving raw materials from him (if the employer provides them) and transferring finished products to him, and with a remote worker, all such interaction is carried out through electronic means of communication;
For a remote worker, you can set:
- working hours agreed with the employer;
- the right to use an enhanced qualified electronic signature of the created documents;
- special conditions in terms of labor protection, ensuring the labor process, granting holidays.

Part-time work with the possibility of remote work

The Labor Code of the Russian Federation does not contain a ban on remote work for part-time workers. When concluding an agreement on such work with a part-time worker, one should remember the rules established by Ch. 44 of the Labor Code of the Russian Federation, by virtue of which for a part-time job:

working time is defined as half the normal working day, and, accordingly, the volume of work performed by him will be half that of an ordinary worker;
leave is granted simultaneously with leave at the main place of work;
The following guarantees do not apply to persons:
- working in the regions of the Far North;
- combining work and study;
- termination of the contract is possible with a 2-week notice in case of hiring another employee to perform the same functions, who is registered for his main place of work.

Features of registration of personnel documents for remote work

Hiring an employee for remote work does not release the employer from the obligation to exchange documents with him in order to:

obtaining from the employee all the necessary information about him;
provision by the employee of originals and copies of documents relevant for employment and further payroll calculations;
execution of an employment contract signed by both parties and possible additions to it;
familiarization of the employee against signature with internal regulations;
receipt by the employee of certificates from the employer.

But if such an exchange can be made with a homeworker through direct contact at the time of receipt of materials for work or transfer of finished products, then for a remote worker this method is not always available. Therefore, interaction with him and in relation to personnel documents is allowed to be carried out using electronic means of communication. At the same time, the documents that the employee must submit to the employer in the original must be sent by regular mail by registered mail with notification.

For other documents, the following options for electronic exchange are possible:

through regular electronic correspondence, followed by sending by mail those papers that the employee and (or) employer need to have in the original;
using electronic documents signed with an enhanced qualified electronic signature, and the recipient must send a response confirmation.

By means of electronic documents it is allowed to carry out:

Familiarity with internal regulations;
filing applications;
providing explanations.

Possibilities of electronic interaction when concluding an employment agreement

The terms of the employment agreement concluded with the remote worker are agreed upon in the process of electronic correspondence. But the final version of this document should be in paper form by each of the parties. Therefore, Art. 312.2 of the Labor Code of the Russian Federation obliges the employer not later than 3 calendar days from the date of conclusion of the contract, by exchanging electronic documents, to send the agreed text of the contract (or an additional agreement to it) to the employee by regular mail by registered mail with notification.

Documents required for employment (passport, work book, SNILS certificate, documents on military registration and education, certificates) can be submitted to the employer electronically. If he considers such a presentation insufficient, then notarized copies of these papers are sent to him by registered mail.

With regard to 2 types of documents required for employment, a special procedure has been established for remote workers:

a SNILS certificate a person who does not have it must draw up independently;
an entry in the work book (or the work book itself when the employee first draws up an employment contract) may not be drawn up by agreement between the employee and the employer, but if there is no such agreement, then the book must be handed over to the employer personally or by registered mail.

If an entry about remote work is not made in the work book, then the employment contract will be the basis for confirming the length of service for the period of such work. And in this case, the fact that the original is in the hands of the employee is of particular importance.

Differences between an agreement with an employee working remotely and a regular employment agreement

An employment contract with a remote worker is mandatory (Article 312.1 of the Labor Code of the Russian Federation). However, the special conditions for the implementation of remote work and the opportunities provided by the current legislation determine the existence of a number of differences between such an agreement and an agreement with an ordinary employee. In a contract with a remote worker:

an indication of the remote nature of the work is obligatory, while the location of the employer is indicated as the place of conclusion of the contract;
there is a condition on the non-execution of a work book, if such an agreement is reached;
a certain mode of work is established, if it is important for the employer, and the procedure for granting holidays;
the need to issue an enhanced qualified electronic signature is stipulated, if such a signature is needed by the employee for work;
contains a list of technical means and software that the employee must use in work, if such a clause is necessary, as well as a list of labor tools transferred to the employee, if such transfer is carried out by the employer;
reflects the amount of compensation for the use of property owned by the employee and used to perform remote work, as well as other expenses arising in connection with this work;
the procedure for exchanging work assignments and the result of their implementation is established;
additional obligations of the employer on labor protection issues, if necessary, are determined;
the conditions for dismissal are reflected, supplementing the list of reasons contained in the Labor Code of the Russian Federation, if a decision is made to include them in the text of the document.

Employment contract for a remote worker - sample

An employment agreement concluded with a remote worker, like an agreement with an ordinary employee, has an arbitrary form, but must contain the mandatory information provided for in Art. 57 of the Labor Code of the Russian Federation, taking into account the features that distinguish remote work from ordinary work.

A sample employment contract for remote work 2017-2018 can be viewed on our website.

Results

The labor legislation of the Russian Federation allows the possibility of carrying out work outside the location of the employer. Such work has 2 varieties (home-based and remote), which have both common features that distinguish this work from ordinary work, and their own characteristics. Remote work is distinguished by the predominance of electronic forms of interaction and the ability not to draw up a work book. An employment contract with a remote worker is drawn up in the usual manner, but with the inclusion in its text of provisions that require agreement between the employee and the employer due to the special nature of the work.

Vladimir Stepanov, Master of Laws, Senior Associate at DS Law

On April 19, 2013, Federal Law No. 60-FZ of April 5, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” (hereinafter referred to as the Federal Law) came into force, in accordance with which the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation ) introduced a new chapter 49.1 on the regulation of the work of remote workers.

The federal law regulated the relations that have developed in modern practice, when employers hire employees who work without being in premises owned by employers. If earlier such employees were most often registered by employers as homeworkers, now there is a separate chapter in the Labor Code of the Russian Federation, which provides for the specifics of labor regulation for this category of workers.

General provisions for remote work

The federal law introduced the concept of remote work. According to Part 1 of Art. 312.1 of the Labor Code of the Russian Federation, remote work is the performance of a labor function determined 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 control the employer, provided that 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.

From this definition, two main features of remote work can be distinguished. Firstly, such work is performed outside the location of the employer, its separate subdivision, outside the stationary workplace, territory or facility, directly or indirectly under the control of the employer. This feature distinguishes teleworkers not only from workers working at the employer's site (office), but also from home workers working from home, since the worker's home can in this case be considered a place indirectly under the control of the employer. It is fair to say that teleworkers, in principle, do not have a workplace in the legal sense of the word (the definition of a workplace is given in Article 209 of the Labor Code of the Russian Federation).

Secondly, the second sign of remote work is the use of public information and telecommunication networks (including the Internet) to perform the labor function and interact with the employer. This feature can be considered secondary, since the use of public networks is typical for many types of work performed at the employer's facility.

Interaction between employer and remote worker

The federal law defines a new way for Russian labor law to interact between the parties to an employment contract - the exchange of electronic documents. A prerequisite for such an exchange is the use of enhanced qualified electronic signatures by the remote worker (person applying for remote work) and the employer. In the form of the exchange of electronic documents, the following can be carried out: the conclusion of an employment contract and a change in its conditions (part 1 of article 312.2 of the Labor Code of the Russian Federation), familiarization of the employee with the internal labor regulations, other local regulations, orders (orders) of the employer, a collective agreement (part 1 of article 312.2 of the Labor Code of the Russian Federation). 5 article 312.2 of the Labor Code of the Russian Federation, part 5 of article 312.1 of the Labor Code of the Russian Federation), presentation by the employee applying for work of the documents provided for in Art. 65 of the Labor Code of the Russian Federation (part 3 of article 312.2 of the Labor Code of the Russian Federation), the provision by the employee of explanations or other information (part 6 of article 312.1 of the Labor Code of the Russian Federation).

Conclusion of an employment contract on remote work

Since HR documentation in Russia is maintained in paper form, the Federal Law provides for the obligation of the parties to an agreement on remote work to provide copies of documents in paper form. In case of conclusion of an employment contract on remote work by exchanging electronic documents, the employer is obliged, no later than 3 calendar days from the date of conclusion of the employment contract, to send the employee a copy of this employment contract on paper (part 2 of article 312.2 of the Labor Code of the Russian Federation). An employee who has provided the employer with the documents provided for in Art. 65 of the Labor Code of the Russian Federation, in electronic form, in turn, is obliged, at the request of the employer, to send him notarized copies of these documents on paper (part 3 of article 312.2 of the Labor Code of the Russian Federation).

The specifics of remote work determines the ways of issuing an insurance certificate of state pension insurance and a work book of a remote worker. If an employment contract for remote work is concluded by exchanging electronic documents by a person entering into an employment contract for the first time, this person receives an insurance certificate of state pension insurance independently (part 4 of article 312.2 of the Labor Code of the Russian Federation). As for the work book of a remote worker, by agreement of the parties to the employment contract on remote work, information about such work may not be entered in the work book of the remote worker, and when concluding a work book for the first time, the work book may not be issued to the remote worker (in such cases, the length of service is confirmed by a copy of the work contracts - part 6 article 312.2 of the Labor Code of the Russian Federation).

It should be noted that an important feature of the norms of the Labor Code of the Russian Federation on remote work is the provision of broader opportunities for the parties compared to the classical labor contract to determine its conditions. In particular, the employment contract on remote work determines:

a) the procedure and terms for providing the remote worker with the necessary equipment, software and hardware, information security tools and other means;

b) the procedure and deadlines for the submission of reports on the work performed by remote workers;

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

d) other conditions of the employment contract for remote work, provided for by the Labor Code of the Russian Federation.

The federal law does not provide for any provisions regarding the conclusion of an employment contract for remote work for a certain period. Thus, an employment contract of this type can be urgent only if there are grounds provided for in Art. 59 of the Labor Code of the Russian Federation.

Occupational safety, working hours and rest time for remote workers

Features of remote work determine the specifics of the application of labor protection standards to remote workers. The federal law has significantly reduced the list of employer's obligations to ensure safe working conditions and labor protection. This list includes:

a) sanitary and preventive care for employees in accordance with the requirements of labor protection, as well as the delivery of employees who fall ill at the workplace to a medical organization if they need emergency medical care (paragraph 16, part 2, article 212 of the Labor Code RF);

b) compulsory social insurance of employees against industrial accidents and occupational diseases (paragraph 19, part 2, article 212 of the Labor Code of the Russian Federation);

c) familiarization of employees with labor protection requirements (paragraph 20, part 2, article 212 of the Labor Code of the Russian Federation), including labor protection requirements when working with equipment and means recommended or provided by the employer (part 2, article 312.3 of the Labor Code of the Russian Federation).

Since the remote worker is not under the direct control of the employer, he sets the working hours at his own discretion. This provision is dispositive, that is, the employment contract may provide otherwise (part 1 of article 312.4 of the Labor Code of the Russian Federation). At the same time, the provisions on working hours stipulated by the contract should not restrict the rights or reduce the level of guarantees of a remote worker in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms; if such conditions are included in a collective agreement, agreement or employment contract, then they are not subject to application (part 2 of article 9 of the Labor Code of the Russian Federation). In particular, an employment contract for remote work may provide for an irregular working day, but this does not mean the obligation of a remote worker to systematically work outside the working hours established for him (for most employees, this is 40 hours a week - part 2 of article 91 TC RF).

The procedure for granting annual paid leave and other types of leave to a remote worker is determined by an employment contract for remote work in accordance with this Code and other acts containing labor law norms (part 2 of article 312.4 of the Labor Code of the Russian Federation).

Termination of an employment contract on remote work

Termination of an employment contract on remote work at the initiative of the employer is carried out on the grounds provided for by the employment contract (part 1 of article 312.5 of the Labor Code of the Russian Federation). Obviously, this provision must be interpreted broadly: the termination of the contract on remote work is carried out at the initiative of the employer on the grounds provided for in Art. 81 of the Labor Code of the Russian Federation, as well as on the grounds provided for in such an employment contract. Again, contractual grounds should not be discriminatory. According to Art. 3 of the Labor Code of the Russian Federation, restrictions on labor rights and freedoms, depending on circumstances not related to the business qualities of the employee, are not allowed. Such restrictions on the rights of workers, which are determined by the requirements inherent in this type of work, are not discrimination.

According to part 2 of Art. 312.5 of the Labor Code of the Russian Federation, if the remote worker is familiarized with the order (instruction) of the employer to terminate the employment contract 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 by registered mail with notification a duly executed copy of the specified order (instruction) on paper.

Conclusion

The introduction of a chapter on the peculiarities of the work of remote workers into the Labor Code of the Russian Federation seems to be an unconditionally positive step by the legislator, aimed at streamlining the existing relations in remote employment. At the same time, based on the current norms of the Labor Code of the Russian Federation, work can be either remote or “stationary” (in the premises of the employer or at home). That is, workers do not have the legal opportunity to combine these two types of work (in practice, such a combination is also very common). Perhaps one of the next stages in the development of Russian labor legislation will be the establishment of the possibility of working both remotely and “stationary” within the same labor relationship.

In connection with the introduction of provisions on remote work, it seems difficult to distinguish between an employment contract on remote work and a civil law contract. In remote work relations, one of the properties of a classic employment contract is missing - the employee's presence at the employer's enterprise.

Therefore, many of the existing civil law contracts with citizens working on outsourcing can be very similar to employment contracts for remote work. Moreover, the federal authorities authorized to exercise supervision in the sphere of labor can use the new institution of labor law as a means of putting pressure on employers in order to force them to conclude employment contracts with outsourced workers, rather than civil law contracts.

Interviewed by the correspondent of the Civil Code A.V. Khoroshavkina

Contract with a remote worker: the more detailed, the better

Deputy Chief of Staff of the State Duma Committee on Labour, Social Policy and Veterans Affairs, Candidate of Yu. n.

A new chapter has appeared in the Labor Code regulating the specifics of the work of remote workers in ch. 49.1 of the Labor Code of the Russian Federation. One of the drafters of the text of the Law tells about who they are and what is the difference between remote work and other types of work, for example, home work.

Alexander Sergeevich, why was it necessary to adopt a new chapter. 49.1 TK? After all, the Labor Code already had a chapter regulating work at home ch. 49 of the Labor Code of the Russian Federation? What is the difference between remote work and home work?

A.S. Leonov: Remote workers can be called "electronic" homeworkers. Both the nature and the result of their work, and the way of communicating with the employer - all this is connected with information in electronic form. In many countries, the term "telework" is used to refer to such work. Moreover, somewhere telework is considered as a kind of home work, somewhere - as an independent phenomenon.

Domestic legislation went the second way and singled out remote workers into a separate category.

A large part of ch. 49.1 is devoted to the electronic interaction of a remote worker with his employer. It is envisaged how the conclusion of an employment contract, the exchange of documents takes place in electronic form. After all, a remote worker, unlike a homeworker, may never meet with his employer at all.

The work of a remote worker is associated with the processing and production of information, and a homeworker is associated with the manufacture of some material things.

Another difference is that the homeworker only works at home. And a remote worker can work anywhere: at home or in a cafe, they can rent an office or a separate workplace. Returning to foreign experience, I will note that such “telecafes” or “telecenters” where remote workers work are very popular there.

A remote worker works outside the location of the employer Part 1 Art. 312.1 of the Labor Code of the Russian Federation. Can he live in the same locality? Can a teleworker live in another country?

A.S. Leonov: No restrictions on the place of residence of a remote worker in Sec. 49.1 of the Labor Code of the Russian Federation no. Therefore, a remote worker - a citizen of the Russian Federation can live and work remotely where it is convenient for him.

He may well live in the same city and even on the same street where the employer's office is located. But he always does the work outside the employer's office. Art. 312.1 of the Labor Code of the Russian Federation.

The Labor Code does not prohibit the employment of foreigners for remote work, unless, of course, the legislation on the involvement of foreign citizens in labor activities is observed.

Does telecommuting create a job? Does a separate division of the organization arise in this case in the sense of tax legislation?

A.S. Leonov: With remote work, the creation of a stationary workplace and, accordingly, the emergence of a separate unit cannot be discussed in principle.

The workplace is the place where the worker has to be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Part 6 Art. 209 of the Labor Code of the Russian Federation. And the creation of a separate subdivision is precisely the equipment of the workplace, the courts believe Decree of the FAS SZO of October 15, 2007 No. A56-40913 / 2006. At the same time, remote work cannot be performed in such places. Part 1 Art. 312.1 of the Labor Code of the Russian Federation otherwise it is not remote work.

Therefore, it is not necessary to stipulate in the employment contract the place where the remote worker performs work. I think that the employer should not rent a room for work. The tax authorities may regard both as signs of the creation of a separate division.

If the employer is interested in the employee working in a certain place, and is ready to reimburse him for the cost of renting a working space, then it is possible to provide in the employment contract that the employee rents an office for himself, and establish the procedure and amount of compensation by the employer for these costs.

The employment contract may stipulate that the employer compensates for the costs of using the employee's equipment and software and hardware. You said that the employer can compensate the employee for expenses related to the use of the premises. What about other property, such as furniture, vehicles?

A.S. Leonov: I think that if it is established by the employment contract, the employer can compensate the employee for the use of property that he needs for work. Part 1 Art. 312.3 of the Labor Code of the Russian Federation. But it is unlikely that it can be a vehicle.

I would recommend drawing up an employment contract with a remote worker in as much detail as possible. Provide in it which expenses of the employee are compensated, which are not. This will help to avoid both conflicts with the employee and the claims of the tax office.

By the way, the costs of a remote worker for the use of equipment or property can be confirmed not only by paper, but also by electronic documents.

Could you give an example of remote work? For example, can an accountant or a journalist working from home be considered a remote worker?

A.S. Leonov: The work of a remote worker is associated with the use of telecommunications. Therefore, if the accountant performs all his work on a computer and sends it to the employer via the Internet, then the work can be considered remote. If he is obliged to personally visit, for example, the tax office, funds, then such work no longer falls under the definition of remote work.

And a journalist who processes information from the Internet and writes articles and reviews based on it can be registered as a remote worker. And if, on behalf of the employer, he must personally come to the scene to make a report, no.

If an employee works remotely for only part of their working time, will they be considered a teleworker? For example, 1 day a week he works in the office, the rest of the days - at his home computer. This mode is very convenient for those who have small children.

A.S. Leonov: No, and in this case, the employee will not be considered remote. And you won't be able to sign a telecommuting agreement.

But even without involving a new chapter of the Code, it is possible to establish such a mode of work for employees. It is enough to correctly draw up an employment contract and internal labor regulations.

If a remote worker is now registered as a homeworker, should he be re-registered?

A.S. Leonov: If a person registered as a homeworker performs essentially remote work, it is more profitable for the employer to register him as a remote worker. Indeed, in this case, the employer will be able to exchange documents with the employee in electronic form.

Therefore, if an employee whose work meets the criteria for remote work was registered as a homeworker, changes should be made to his employment contract (by agreement of the parties) Art. 72 Labor Code of the Russian Federation or (if the terms of the current employment contract give grounds for that) terminate the old contract and conclude a new one.

Documents transmitted via communication channels must be certified by an enhanced qualified electronic signature of the employer and employee. Is it the responsibility of the employer to provide an employee with an electronic signature and equipment for reading it?

A.S. Leonov: Documents that a remote worker exchanges with an employer must be certified by an enhanced qualified electronic signature. Part 4 Art. 312.1 of the Labor Code of the Russian Federation.

Therefore, a remote worker must have an electronic signature. But who should purchase it - the employee himself or his employer, is determined by the employment contract. Part 1 Art. 312.3 of the Labor Code of the Russian Federation.

Perhaps the employee already has an electronic signature and the employer agrees that he will use this signature, and not acquire a new one.

Are workplaces certified and mandatory medical examinations of employees carried out during remote employment? After all, such workers spend more than 50% of their working time at the computer.

TELLING THE MANAGER

For teleworkers, the employer must not carry out neither certification of workplaces, nor mandatory medical examinations, unless otherwise provided by employment contracts.

A.S. Leonov: The employer must accrue mandatory accident insurance contributions to the wages of remote workers, investigate accidents and occupational diseases, and comply with the instructions of the state labor inspectorate, if any. Other obligations of employers on labor protection do not apply to remote workers, unless otherwise provided by the employment contract on remote work. Part 2 Art. 312.3 of the Labor Code of the Russian Federation.

If an accident occurs to a remote worker while on the job, how to investigate it in practice?

A.S. Leonov: There is no special procedure for investigating accidents that occurred with remote workers, and here one must be guided by the general provisions of the Labor Code articles 227-231 of the Labor Code of the Russian Federation. The employer must investigate and inform the state labor inspectorate. I think that this should be an inspection at the place of residence or stay of the employee.

Of course, there may be difficulties in determining whether the accident with a remote worker was industrial. For example, if a laptop exploded in the hands of an employee, it is necessary to establish whether he was performing the task of the employer at that moment.

It could probably make a difference whether the teleworker worked on their own equipment or on the employer's equipment. And if it is his own equipment, are the requirements for the equipment, its brand defined by the employment contract.

Is it necessary to prescribe the mode of work of a remote worker in the employment contract?

A.S. Leonov: This is not required. But if it is important for the employer that the employee be online for a certain time and be engaged, for example, in administering the site, it is advisable to establish the working regime in an employment contract. Modern software tools allow you to control whether the employee complies with the work regime.

And if the job is, say, to test a network game, there is no need to set the work mode. Then, if this is not provided for in the contract, the labor regime is established by the worker himself. Art. 312.4 of the Labor Code of the Russian Federation.

Are remote workers included in the vacation schedule?

Is study leave also granted to a remote worker in the usual way?

An employment contract with a remote worker may provide grounds for its termination at the initiative of the employer Part 1 Art. 312.5 of the Labor Code of the Russian Federation. What could be the reasons for this?

A.S. Leonov: Probably, these are some factors that can prevent a remote worker from fulfilling their duties. But we must remember that such additional grounds should not worsen the situation of remote workers compared to other categories of workers.

If the employee and the employer are located in different regions, what rules, for example, establishing a regional minimum wage, should be used?

A.S. Leonov: In my opinion, it is necessary to focus on the minimum wage of the region in which the employee lives and works. After all, living conditions, the level of prices in different regions differ.

The same applies to the "northern" coefficients and allowances. Their purpose is to compensate for the costs of the employee in connection with living in a harsh climate. Therefore, if an employee lives in the south and the employing organization is located in the north, the "northern" coefficient does not apply to the employee's salary.

Is the personal income tax of a remote worker transferred at the location of the employer?

A.S. Leonov: There are no features here. Personal income tax on the income of remote workers is paid at the location of the employer.

To the labor inspectorate of which region - his or his employer - should a remote worker complain if his rights are violated?

A.S. Leonov: The Federal Labor Inspectorate is a single centralized system. Therefore, I think that a remote worker may well apply to the inspection at his place of residence. And it is not even necessary to go there in person, it is enough to send an e-mail.

Information about remote work may, at the request of the employee, not be entered in the work book. What would you recommend: to enter information about remote employment in the work book or not?

A.S. Leonov: The work book is the main document confirming the work experience. Art. 66 Labor Code of the Russian Federation. Proposals have been repeatedly made to abolish work books. But this will happen, I think, in 15-20 years.

The length of service of a remote worker can be confirmed by an employment contract, and therefore it is allowed not to make entries in his work book.

But for many personnel officers, when hiring a new employee, it is important to know exactly all his previous jobs, the stages of his career, the reasons for dismissals. And the entries in the work book inspire more confidence in them.

Documents that a remote worker sends to an employer, including a work book, may be lost in the mail. How can an employee protect himself from possible problems?

A.S. Leonov: Before sending a work book or other important document by mail, it is advisable to make a copy of it and certify it with a notary. Then, if the mail loses the work book, it can be restored.

And it is better to send documents by registered mail with a description of the attachment.

If an employee falls ill, he must send documents to the employer by registered mail. Can he bring them personally?

A.S. Leonov: Possibility to give sick leave in person in ch. 49.1 of the Labor Code is indeed not provided for, but this is a technical flaw. If the employee lives in the same locality as the employer, he can bring the documents personally.

And if the employee lives in another locality and came in order to personally hand over the work book or sick leave to the employer, should the employer reimburse the employee for travel expenses? Can this be done as a business trip?

A.S. Leonov: I think no. After all, the employee did not have to go to the employer. This is his initiative. Therefore, the employer does not have to reimburse such expenses, much less arrange a business trip.

How is the benefit paid if the employer is located in the region where the pilot project for the payment of benefits directly from the FSS is taking place, and the employee is in the region that does not participate in the project (or vice versa)?

A.S. Leonov: In these cases, it all depends on what payment rules apply in the region where the employer is located. In any case, the employee sends the sick leave to the employer.

If the general rules apply at the location of the employer, then he pays this sick leave in the same way as other employees.

If the employer is located in the region where the pilot project is taking place, then he will have to transfer this sick leave to the FSS branch along with the details of the employee's bank account, to which wages are accrued. The sick leave in this case will be paid by the FSS directly to the employee.

How are teleworkers paid for overtime, work on weekends and holidays?

A.S. Leonov: If the working hours are specified in the employment contract, and the employer asks the remote worker to work additionally at other times, he will have to pay the employee all compensation provided for by law. Part 3 Art. 312.1 of the Labor Code of the Russian Federation.

If the employee himself determines his mode of work, compensation for overtime work is not paid.

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

What is the benefit

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

All of these factors, taken together, are driving the growing popularity of remote work. But legislation, until recently, such a phenomenon as “remote work” bypassed, and employers were forced to invent various “schemes”. But last year, Federal Law No. 60-FZ dated 05.04.13, the Labor Code was finally supplemented with a new one, dedicated to the peculiarities of regulating the work of remote workers.

How is it different from home work?

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

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

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

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

A remote employee does not need to undergo a medical examination; an employment contract with him can be concluded and terminated electronically. Finally, a "remote worker" does not have to make an entry in the work book, pay overtime and ensure labor safety in full. In general, the conditions are much more realistic to implement than the rules for homeworkers.

How to draw up a contract

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

Further, in the contract, it is necessary 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 internal labor regulations apply to the employee in the part that does not contradict the essence of the terms of this employment contract on remote work.”

The contract must establish the procedure for providing the employee with various resources. So, you can specify that "the employee independently provides himself with a computer, telephone and access to the Internet." And you can impose a similar obligation on the employer: “No later than 5 working days from the date of conclusion of this employment contract, the employer undertakes to provide the employee with a computer, telephone, and ensure the availability of an Internet connection.” The third option is to fix the obligation of the employer to compensate the employee for equipment and (or) pay for the phone and the Internet. For example, like this: “The employer undertakes, no later than the fifth day of each month, to compensate the employee's expenses for paying bills for the Internet and mobile phone at actual costs, but not more than 10 thousand rubles per month. Compensation is paid in accordance with the Regulations on Compensation of Expenses for Employees Employed Outside the Location of the Employer (Remotely), approved by the employer.”

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

What to write in the Timesheet

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

You can go the other way, fixing in the employment contract that the employee distributes working time and rest time at his discretion (the option provided for by the Labor Code of the Russian Federation as the main one), and notifies the employer in writing about the working hours. In this case, you can fill out the Time Sheet based on employee reports. But this option is not regulated by law, so we would not recommend using it everywhere. Moreover, this can also lead to tax problems (see the question about compensation below).

Transfer an employee to telecommuting

For remote work, you can accept not only new employees, but also transfer existing ones. To do this, you need to draw up an additional agreement to the employment contract. The subject of this agreement is the change in the nature of labor. Accordingly, in the agreement you include all the wording regarding the new labor regime, which we cited above. Be sure to include the date from which 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 labor law norms, 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 business trips. Thus, the employer can send a remote worker on a business trip. And, accordingly, take into account all the associated costs in taxation.

Whether to register a separate division

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

Accounting for compensation

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

Another nuance is related to the distribution of reimbursable expenses for expenses incurred in connection with the performance of labor duties and outside them. For expenses in the form of a monthly fee, such distribution can be made on the basis of the ratio of the number of working hours and the total number of hours in the period. This data, of course, must be taken from the employment contract and the time sheet.

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