Remote workers: a complete guide for personnel officers and accountants. Remote work: nuances of formalizing labor relations

If an organization hires an employee who will work remotely, that is, work outside the company’s office, then there are two ways to formalize an employment relationship with him. This could be the conclusion of an employment contract for remote or home work. We will look at the differences between these two types of employment for remote employees in more detail in our article.

Remote and home work: differences, similarities, legal requirements

Today, more and more workers are “going online” and starting to work remotely via the Internet. Web designers, copywriters, managers, programmers, consultants and representatives of many other specialties today have the opportunity to work without leaving home and anywhere in the world. For employers, hiring such employees “remotely” has a number of significant advantages. For example, there is no need to rent an office in order to keep a staff of employees, buy office furniture, office equipment, pay public utilities and pay taxes. Today, representatives of many professions can simply work remotely, but at the same time officially be on the staff of the company.

The concept of “home work” existed in the country’s Labor Code for a long time, but in the spring of 2013 Federal Law No. 60-FZ came into force, which introduced changes to certain legislative acts Russian Federation. In particular, the Labor Code of the Russian Federation was supplemented with Chapter 49.1 entitled “Features of labor regulation remote workers" Thus, a new concept of “remote work” was introduced. Remote work has a number of legal features and important differences from home working. Let's look at them in the table.

In general, experts note that the employer has the right to independently choose the option of formalizing labor relations with his remote worker, depending on the specifics of his work in each specific case. Both options have their pros and cons for the employer. But there are some points that employers should pay attention to when formalizing employment relationships with remote employees.

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Important to remember!

Many employers are wondering: is the place where a remote worker works a separate structural unit of the organization? This issue is important primarily because in connection with the emergence of a separate structural unit, the employer has a new obligation to pay taxes and register with the tax authorities of such a unit. In accordance with the Tax Code of the country, stationary jobs must be created at the location of a separate structural unit. A workplace is stationary if it is created for a period of more than one month. But is workplace remote worker stationary?

Based on the definition given in Article 312.1 of the country’s Labor Code, remote work does not have the characteristics of a separate division of the organization, which means concluding a remote work agreement with an employee does not lead to the emergence of a separate division. Therefore, there is no need to register a remote worker as a separate structural unit of the company with the tax authorities.

Hiring employees who work remotely is becoming increasingly popular among employers. This is a convenient form of relationship in cases where the nature of work activity allows you to work at a distance.

Registration of a remote employee - basic provisions

Remote workers– a new category of personnel who fulfill their work obligations outside the office walls. For the employer, this has undeniable advantages. There is no need to maintain a large office, because the equipment of the workplace is also expensive. It is much more convenient to hire a qualified specialist who can work at home, fulfilling the terms of the employment agreement.

Hiring a remote employee must be formalized in accordance with applicable legal regulations. Such workers are called freelancers or remote workers. Typically, a category of employees whose duties do not involve close contact with other specialists are invited to such work. Accountants, lawyers, designers, programmers and some other employees.

Registration of a remote employee is standardized by the Labor Code of the Russian Federation. In the recent past, amendments were made to the legislation that regulate the relationship of the labor process on a remote basis. Workers have the opportunity to formally register with payment wages and deduction of required taxes, pension contributions (see).

Since 2013, amendments to the Labor Code have made it possible to officially register as a remote worker. Form of relationship in in this case between the employer and the employee – an employment contract on remote work. All requirements on this issue can be found in Article 49.1 of the Labor Code of the Russian Federation.

Not all employers know how to hire a remote employee. To conclude an employment agreement, there are some features that must be taken into account:

• Availability of electronic documents for certification.
• Electronic correspondence between the parties to an employment agreement is considered valid only if there is an electronic signature.
• Both parties to the employment agreement must accept electronic signatures.

To avoid controversial issues when concluding an employment contract and upon its termination, it is better to prepare all documents in printed form and send by mail with delivery notification.

The law contains strict requirements for the regulation of imprisonment distance contract. To prevent further controversial issues, it is necessary to clearly regulate all the intricacies of cooperation. Today, formalizing a remote employee is a requirement of the times.

An employment contract with a remote employee contains a number of mandatory clauses:

• Determination that this work is remote.
• The address where the employee works.
• Length of working hours during the week.
• A clear definition of the form in which the report on the work done is presented.
• Social guarantees that a remote employee receives.
• When compensating the costs of paying for the Internet, mobile communications, renting a workplace and other expenses paid by the employer, everything must be reflected in the employment contract.
• Job responsibilities of the employee.
• Responsibility of the parties under this agreement.

Hiring a remote employee - choosing a form of cooperation

Today, for many entrepreneurs, it is more profitable to hire a remote employee. The legal norm makes it possible to formalize remote employees under two different contracts:

• Conclude an employment contract in accordance with the Labor Code of the Russian Federation.
• Conclude a civil contract (for the provision of services, a contract, a contract for the performance of work).

The second type of contract is preferable if it is necessary to perform one-time short-term work. After the completion of the relationship, a work completion certificate is drawn up, according to which remuneration is paid.

Interesting fact! The latest significant example of the expansion of remote employment is the transfer by the mobile operator Beeline of a significant proportion of its employees to work outside the office. By the end of this year, the company can transfer from 50 to 70% of employees to remote mode. At Tinkoff, a significant portion of employees already work outside the office.

Concluding an Employment Agreement under Article 49.1 of the Labor Law makes sense for long-term cooperation. In this case, the employer must do the following:

• Conclude an employment contract ().
• Familiarize the employee with the documentation for work.
• Issue all documents needed to perform duties.

The agreement is considered to come into force after it is signed by both parties. The employee must have one copy of the document, this is mandatory. If desired, a record of employment is made. This can be done in person, or you can send your work book to the organization by mail.

Interesting fact! Scientists have found that those who work from home have a higher risk of developing stress and domestic conflicts than the “office plankton.”

Persons working under a remote work agreement are subject to all conditions and benefits as for other categories of employees. They have the right to vacation, sick leave compensation, maternity leave, etc.

To dismiss an employee, regardless of the form of work, there are general rules. Legislation protects the interests of the employee; dismissal is regulated by Article 81 of the Labor Code of the Russian Federation. The grounds for termination of employment relations are gross violations of discipline, failure to fulfill obligations under the contract, disclosure of commercial or official secrets that became known during the performance of one’s duties, etc.

At the request of the employer, the reasons for dismissing an employee are reflected in the closed list of clause 5, part 1 of Art. 81.TK:

• Absenteeism without good reason (you may be interested:).
• Availability of disciplinary sanctions.
• Performing work, appearing at the employer while intoxicated, using narcotic or toxic drugs.
• Providing false information to an employer.
• Theft of money or other valuables.
• Loss of trust in the employee on the part of the employer.

At the same time, the Law provides for restrictions on the dismissal of a number of categories of persons. You cannot fire a mother who has minor children if there are no other breadwinners. An employee who is on sick leave or undergoing treatment can be fired after recovery. Pregnant women are fired only if the legal entity that hired the employee ceases to exist.

Interesting fact! 42% of employees who constantly work from home or in multiple locations admitted to having trouble sleeping.

To fire a remote employee, the reason for dismissal is the reason specified in the employment agreement upon hiring. The employer, before drawing up an employment contract for hiring a remote employee, must reasonably consider the reasons for dismissal (see).

The only limitation may be the absence of an employee due to illness. He can be fired only after returning to work duties after recovery.

Read about the benefits of using remote teams of employees and proper management of staff working remotely!

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Telecommuting, or telecommuting as it is called, is becoming increasingly popular. There is no doubt that this mode of work is convenient for both the employee and the employer. However, since remote work has not been around for very long, employers have made mistakes when establishing, regulating, or terminating it. Who can use this mode of operation? How to do it? How is the interaction between employee and employer carried out? On what grounds can you fire a remote worker? You will find answers to these and other questions in the article.

The essence of remote work

By virtue of Art. 312.1 Labor Code of the Russian Federation Remote work is the performance of a labor function specified in an employment contract:

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

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

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

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

No need to be confused remote work with a home-based According to Art. 310 Labor Code of the Russian Federation Homeworkers are considered to be persons who have entered into an employment contract to perform work at home using materials and using tools and mechanisms provided by the employer or purchased by the homeworker at his own expense. The result of home work is certain products, and the result of remote work is information, information, and intellectual property.

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

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

In addition, the Ministry of Labor has repeatedly (most recently in Letter dated January 16, 2017 No. 14 ‑2/OOG-245) expressed the opinion that labor legislation does not currently provide for an employer the opportunity to conclude an employment contract on remote work with a citizen of the Russian Federation, a foreign citizen or a stateless person if he works outside the Russian Federation, since concluding an employment contract on such conditions violates the Labor Code of the Russian Federation . In particular, the employer will not be able to fulfill its obligations to provide remote workers with safe working conditions and its protection ( Part 2 Art. 312.3Labor Code of the Russian Federation) due to the fact that federal laws and other regulatory legal acts of the Russian Federation that form labor legislation are valid only on the territory of our country ( Part 1 Art. 13Labor Code of the Russian Federation). It is recommended to conclude civil contracts with such citizens.

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

We arrange an appointment remotely

A remote worker is hired according to the general rules provided for Art. 68Labor Code of the Russian Federation, but in compliance with the requirements Ch. 49.1Labor Code of the Russian Federation And Federal Law of 04/06/2011 No. 63 ‑Federal Law “On Electronic Signature”(Further - Law no. 63 ‑FZ).

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

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

From this provision it follows that the employer sends a signed copy of the employment contract to the employee. There is no obligation for the employee to send the employer by mail a second, signed copy.

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

IN Article 312.2 of the Labor Code of the Russian Federation It has been established that when concluding an employment contract on remote work through the exchange of electronic documents, the documents provided for Art. 65 Labor Code of the Russian Federation, can be presented to the employer by a person applying for remote work in electronic form. At the request of the employer, this person is obliged to send him by registered mail with notification notarized copies of the specified documents on paper.

If such an agreement is concluded by a person for the first time, he receives an insurance certificate of compulsory pension insurance independently.

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

Thus, if no entries in the work book about the work of a remote worker have been made, the main document about his work activity, confirming his length of service, will be an employment contract for remote work.

If an employee wants a record of his remote work to be included in the work book, he must give it to the employer in person or send it by registered mail with notification.

Since entry into the work book of an entry about the remote nature of work is not provided Instructionson filling out work books, approved Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69 , the employment record is made according to the general rules.

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

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

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

Employment contract

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

The employee performs a labor function outside the employer’s location (remotely).

At the same time, like any other employment contract, an agreement on remote work must include prerequisites, named in Art. 57 Labor Code of the Russian Federation, including:

Place of work. The organization and its location are indicated here. But the place where the work is performed (address of residence, email address) should be indicated in the additional condition “Clarification of place of work”;

Working hours and rest hours, etc. The working hours can be the same as for all employees of the organization, but they may differ;

A remote worker has the right to determine the working hours and rest time independently, unless otherwise provided in the employment contract (Part 1, Article 312.4 of the Labor Code of the Russian Federation).

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

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

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

On the procedure for making entries in the work book ( part 6 art. 312.2);

On the procedure and timing for providing the employee with the equipment, other technical means, and software necessary to perform job duties in accordance with the employer’s requirements ( part 8 art. 312.2). For example:

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

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

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

On the procedure for an employee to use information security tools in accordance with the employer’s recommendations ( part 8 art. 312.2);

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

On the procedure, timing and form for the employee to submit reports on work performed ( Part 1 Art. 312.3).

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

Nuances of remote work

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

If an employee gets sick or is going on maternity or child care leave, he must send the employer the originals of the relevant documents (certificate of incapacity for work, application, etc.) by registered mail with notification (Article 312.1 of the Labor Code of the Russian Federation).

Special attention is paid to the employer’s compliance with labor safety standards in relation to remote workers.

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

Investigation and accounting as defined by the Labor Code, others federal laws and other regulatory legal acts of the Russian Federation on the procedure for industrial accidents and occupational diseases ( para. 17 hours 2);

Fulfillment of instructions of officials of the federal executive body authorized to exercise federal state supervision over compliance with labor legislation and other acts containing labor law norms, other federal executive bodies exercising state control (supervision) in the established field of activity, and consideration of submissions from public bodies control within the time limits established by the Labor Code of the Russian Federation and other federal laws ( para. 20 hours 2);

compulsory social insurance of workers against accidents at work and occupational diseases ( para. 21 hours 2).

In addition, the employer must familiarize remote workers with labor safety requirements when working with equipment and tools recommended or provided by the employer.

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

Features upon dismissal

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

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

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

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

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

The job description will be an integral part of the employment contract if, in accordance with this contract, it is an annex to it. However, in any case, it becomes mandatory only in terms of job responsibilities and requirements for the employee. If the job description establishes the grounds for dismissal, they are not subject to application, since such an instruction, unlike an employment contract, is not considered an agreement of the parties.

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

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

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

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

We examined the features of remote work - in particular, those related to hiring, drawing up an employment contract, working hours and rest periods, organizing labor protection and dismissal. Otherwise, remote workers are subject to the general norms of the Labor Code, including regarding the provision of vacations, recording of working time depending on its mode, etc.

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