What is remote or distance work according to the Labor Code of the Russian Federation? Remote worker: are such employees needed? Principles of building work with them

How to formalize an employment relationship with a remote employee

The article will help you find out how to formalize an employment relationship with a remote employee at a remote job, whether a working mode is established for him and what is the procedure for dismissal.

Many citizens prefer to work from home, regardless of whether they have the opportunity to visit daily workplace. Although telecommuters may perform the same work as on-site workers, their terms of employment differ from standard ones. About how to apply labor Relations with a remote worker, what insurance payments are due to him and what is the procedure for dismissal, we will tell in this article.

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general information

There are the following methods of remote work:

1. Remote work.
2. Home work.

Note: Distinguishing between home and telecommuting

Citizens working remotely are subject to the general norms of labor legislation. (part 3 Labor Code Russian Federation).

Features of labor relations with remote employees are regulated by the following regulations:

• Labor Code of the Russian Federation, namely.
• Law No. 63-FZ of 04/06/2011, which reflects information regarding the procedure for obtaining electronic digital signature and exchange of electronic documents between the employer and employees.

Remote workers should be included in the staff of the organization.

1. controlled by the employer.
2. The employee is there or should arrive there as needed.

Until the conclusion employment contract the employer is obliged to familiarize the employee with various local acts:

• Labor regulations.
• Award Regulations.
• Collective agreement, etc.

This procedure can be carried out through an electronic exchange between the employer and the employee who works remotely. Documents must be signed with an electronic signature.

This rule is confirmed by the following regulatory documents:

• Labor Code of the Russian Federation, part 5 of article 312.1, part 5 of article 312.2.
• Law No. 63-FZ of April 6, 2011, article 6.

Employment relations between these persons are formalized in accordance with general rules under Article 68 of the Labor Code of the Russian Federation.

The registration process includes the following items:

1. Drawing up an employment contract.
2. Issuance of a job order.
3. Establishment of a personal card.
4. Making an entry in the work book.

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The mode of work and rest of a remote employee

If possible, the remote worker sets the mode of operation independently. When work is required to be performed at a certain time, this rule is fixed in the employment contract or additional agreement.

Record example: “The employee's working hours are set from 10.00 to 19.00. Lunch break - from 14.00 to 15.00"

The procedure for granting annual and other holidays is fixed in the employment contract and is carried out in accordance with the general rules.

An example entry: “An employee is provided with annual paid leave of 28 calendar days according to the holiday schedule.

Remote worker works when he wants, so he has no days off

remote worker worked on the day off. How to pay for this if the employment contract provides for the establishment of working hours and rest periods at the discretion of the employee?

Note: Clarifications on this issue were given by Rostrud in the May 2018 review.

Labor legislation does not provide for a special procedure for granting rest days to remote workers for working on weekends. Since the employment contract does not define the mode of work and rest of such an employee (the employee determines the mode of work and rest at his own discretion), it is impossible to consider his work on a certain day.

Exchange of documents in electronic form

An employee working remotely can contact the employer via email. For example, if he needs to convey any information or write a statement. Appeals are certified by an electronic signature.

For the exchange of documents electronic form both parties must have an enhanced qualified electronic signature issued in a specialized certification center.

If the remote worker needed copies of some work documents and did not indicate in the application that they can be submitted in electronic format, the employer must send them by mail by registered mail with notice. Copies should be sent to the employee within 3 working days from the receipt of the request (part 8 of article 312.1 of the Labor Code of the Russian Federation).

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Insurance payments

A remote worker has the right to receive insurance payments (, maternity, etc.) in accordance with general grounds.

To receive these payments, you must send the employer by registered mail the original documents relevant to the case (disability certificate, certificates).

These rules are defined in parts 6, 7, 8 of article 312.1 of the Labor Code of Russia.

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Occupational Safety and Health

The direct obligations of the employer to protect and ensure non-hazardous criteria for the work of remote employees:

1. Follow the instructions of the State Labor Inspectorate.
2. Pay premiums for insurance of remote workers against occupational diseases and accidents.
3. Investigate employee accidents.
4. Investigate employee occupational diseases.
5. Familiarize employees with the requirements of labor protection when working with equipment.

The employer is not obliged to provide remote employees with overalls, training in the safe performance of work, unless this is stipulated in the employment contract.

There is no special assessment of working conditions for remote teleworkers

According to paragraph 3 of article 3 "Special assessment of working conditions" A special assessment of working conditions is not carried out in relation to the working conditions of homeworkers, remote workers and employees who have entered into labor relations with employers - individuals who are not individual entrepreneurs. In this regard, with regard to working conditions homeworkers and teleworkers - special assessment working conditions not carried out.

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Dismissing a Remote Employee

According to the Labor Code of Russia, the dismissal of a remote worker is carried out on general grounds.

If the employee and the employer exchange documents in electronic form, then the dismissal order must be sent in a similar way. An employee familiarized with the order must send the document back, certifying it with an electronic signature.

On the day the employee is dismissed, the employer should give him a copy of the order in paper form. The document is sent by registered mail with notification. Next, the final calculation is made and the data is entered into the personal card. These rules are reflected in Part 2 of Article 312.5

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If an employee is hired by an organization 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 may be the conclusion of an employment contract for remote or home work. We will consider in more detail the differences between these two types of employment for remote employees in our article.

Remote and home work: differences, similarities, legal requirements

Today, more and more workers "go online" and start working remotely via the Internet. Web-designers, copywriters, managers, programmers, consultants and representatives of many other professions now have the opportunity to work from home and from anywhere in the world. For employers, the registration of such employees “on a distance” has a number of significant advantages. For example, there is no need to rent an office in order to keep staff, buy office furniture, office equipment, pay utility bills and pay tax contributions. 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 Labor Code of the country for a long time, but in the spring of 2013, Federal Law No. 60-FZ came into force, which amended certain legislative acts of the Russian Federation. In particular, the Labor Code of the Russian Federation was supplemented with Chapter 49.1 entitled “Peculiarities of regulating the work of remote workers”. Thus, a new concept of "remote work" was introduced. Remote work has a number of legal features and important differences from home work. Let's look at them in a 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 case. Both options have their pros and cons for the employer. But there are some points that employers should pay attention to when formalizing an employment relationship with remote employees.

Note
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Important to remember!

Many employers ask themselves the question: 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 tax authorities such a division. In accordance with the Tax Code of the country, stationary jobs must be created at the location of a separate structural unit. The workplace is stationary if it is created for a period of more than one month. But is the remote worker's workplace a stationary one?

Based on the definition given in Article 312.1 of the Labor Code of the country, remote work does not have signs of the work of a separate division of the organization, which means that the conclusion of an agreement on remote work with an employee does not lead to the emergence of a separate division. Therefore, it is not necessary to register a remote worker as a separate structural unit of the company with the tax authorities.

Representatives of various professions can work at home: accountants, translators, programmers. Art. 310 of the Labor Code gives the following definition of the concept of "homeworker": this 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. In the regulation of labor relations with the named employee, there are some features. Here are the main differences between the work of homeworkers and the work of other employees.

Work specifics

A remote employee, as a rule, performs the work assigned to him not in the premises provided by the employer, but at home. This means that the employer will not be able to control the labor process, in particular, whether the working hours are observed. It is possible that the homeworker will perform work stipulated by the employment contract, with the participation of family members. Moreover, labor relations between family members of the homeworker and the employer do not arise (Article 310 of the Labor Code of the Russian Federation). In addition, if a remote worker uses his own equipment and materials in the performance of an assignment, he should be given appropriate compensation.

Work at home is regulated by Ch. 49 of the Labor Code of the Russian Federation and the Regulation on the working conditions of homeworkers, approved by the Decree of the USSR State Committee for Labor and the Secretariat of the All-Union Central Council of Trade Unions dated September 29, 1981 No. 275 / 17-99 (hereinafter - the Regulation). Now the Regulation is in force in the part that does not contradict the Labor Code.

The norms of labor legislation apply to homeworkers in accordance with Ch. 49 of the Labor Code of the Russian Federation. The internal documents of the employer (collective agreements, provisions on bonuses, internal regulations, etc.) apply to them only if they do not contradict the employment contracts concluded with them.

In Art. 91 of the Labor Code of the Russian Federation states that the normal duration of work of employees cannot exceed 40 hours per week. The employer is obliged to take into account the hours worked by each employee. But homeworkers are outside the office, and it is almost impossible to control them. As a rule, in the report card (forms No. T-12 and T-13), they are given the prescribed 40 hours. For homeworkers, as well as for ordinary employees, the bonus system established in the organization applies. For overtime and weekend work holidays homeworkers are not paid. This is due to the specifics of the organization of work of remote workers. They set their own working hours. Thus, the norms governing remuneration for overtime work, work on weekends and non-working holidays, at night (Article 152-154 of the Labor Code of the Russian Federation) do not apply to them. All work performed by homeworkers is paid at a single rate. This is stated in paragraph 16 of the Regulations.

Rights and obligations

For homeworkers, all guarantees and compensations provided for labor law. In particular, they are entitled to an annual paid leave of at least 28 calendar days and to state benefits in case of illness, pregnancy, childbirth, etc.

An employment contract is concluded with all employees according to the same rules provided for in Ch. 11 of the Labor Code of the Russian Federation. When hiring homeworkers, in addition to the mandatory conditions, the document must indicate everything that relates to the specifics of their work.

What is meant? As mentioned, the homeworker can obtain tools, equipment and materials from the employer or purchase them at his own expense. The accepted option is fixed in the contract. If personal property is used in the work, indicate the form, amount and timing of reimbursement of expenses (how the purchase and depreciation of property is reimbursed, the cost telephone conversations, Internet, etc.). In addition, it is necessary to prescribe the procedure for accepting products (the result of work), its export and quality determination.

The condition on the timing and methods of payment of remuneration is mandatory (Article 57 of the Labor Code of the Russian Federation). The homeworker's salary can be paid in cash through the cash desk, transferred to a bank account or sent by postal order. As a rule, homeworkers are paid piecework, that is, they receive remuneration for each unit of production that meets the requirements of the employer. Sometimes it is more convenient to assign a fixed salary (to an accountant, a translator).

We define a workplace

The homeworker is issued for work in the same way as all employees. When the employment contract is signed, the manager issues an order (form No. T-1 or No. T-1a), which the homeworker must familiarize himself with against signature. If the place of work is the main one, a mark in work book contribute after five days of working off (Article 66 of the Labor Code of the Russian Federation). The norm of clause 8 of the Regulation that this is done only after the homeworker has completed the first task is invalid, as it contradicts the Labor Code.

Here, many may have a question: is the workplace of a homeworker a separate unit?

According to paragraph 1 of Art. 83 of the Tax Code of the Russian Federation, an organization at the location of a separate subdivision is obliged to register for tax purposes. Should you do the same when hiring a homeworker?

Any subdivision with stationary jobs located in a separate territory is recognized as separate (clause 2 of article 11 of the Tax Code of the Russian Federation). The workplace is a point (directly or indirectly) controlled by the employer, where the employee must be or where he needs to arrive in connection with work (Article 209 of the Labor Code of the Russian Federation). It is stationary if it was created for more than one month. The employer does not provide the homeworker with working conditions and does not have rights to his premises, since he does not have title documents (lease agreement, certificate of ownership, etc.). The homeworker does not go to work and does not travel, but works where he lives. No one has the right to control his house, since the dwelling of any citizen is inviolable (Article 25 of the Constitution of the Russian Federation).

Thus, the place of work of the homeworker cannot be named on any basis. separate subdivision, and you do not need to register at its location. The Ministry of Finance of Russia adheres to the same point of view (Letter No. 03‑02‑07/1‑129 dated May 24, 2006).

Reimbursement

As already noted, the homeworker can use his own equipment, tools and independently purchase materials to perform the work. Based on Art. 188 of the Labor Code of the Russian Federation, when an employee uses personal property with the consent or knowledge of the employer and in his interests, the employee is paid compensation. The amount of reimbursement of expenses is determined in the employment contract.

Depending on the type of activity, the homeworker uses a variety of tools and equipment. So, an accountant needs a computer, a printer, a copier, and a dressmaker needs a sewing machine. An employee can transport manufactured products to the office in his own car. The telephone will most likely be used to communicate between the employee and the employer.

The costs of the organization for the payment of compensation for the wear and tear of equipment provided for by the employment contract may be taken into account for profit tax purposes. But they must satisfy the requirements provided for in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, that is, to be economically justified and documented. For example, when determining the amount of compensation for the use of equipment, one can proceed from the Classification of fixed assets included in depreciation groups (Resolution of the Government
of the Russian Federation of 01.01.2002 No. 1). In this case, the parties have the right to independently determine the amount of the refundable amount, guided by common sense and economic feasibility of such costs.

Please note: compensation for the use of an employee’s personal car can only be taken into account within the limits approved by Decree of the Government of the Russian Federation of February 8, 2002 No. 92 (clause 11, clause 1, article 264 of the Tax Code of the Russian Federation).

Often, a homeworker buys various materials and components at his own expense to perform the work. In the tax accounting of the employing organization, the costs associated with the acquisition of such material assets can be taken into account on the basis of paragraph 1 of Art. 254 of the Tax Code of the Russian Federation. Confirming documents are waybills, checks of KKT, which are attached to the advance report.

In accounting, the costs of purchasing materials are related to expenses for ordinary activities (clause 7 of PBU 10/99). The write-off is made as these inventories are released into production (clause 16 PBU 5/01).

If the employment contract establishes that the supply is the responsibility of the employer, the purchase costs are taken into account in the usual way.

The cost of fixed assets is written off in accordance with paragraphs. 1 p. 1, p. 3 Art. 346.16 and paras. 4 p. 2 art. 346.17 of the Tax Code of the Russian Federation, and materials - in accordance with paragraphs. 5 p. 1 art. 346.16 and paras. 1 p. 1 art. 254 of the Tax Code of the Russian Federation (clause 2 of article 346.16 of the Tax Code of the Russian Federation). The tax base reflects only paid expenses (clause 2 of article 346.17 of the Tax Code of the Russian Federation).

When transferring equipment to a remote worker, an invoice for the internal movement of an object is filled out in the form No. OS-2 (approved by the Decree of the State Statistics Committee of Russia dated January 21, 2003 No. 7), and when transferring materials - a requirement-invoice in the form No. dated October 30, 1997 No. 71a).

Advanced control methods

The question that many employers cooperating with remote workers ask is: how can you influence a person who sometimes lives in another city and does not work in the office? There are several ways to solve this problem: administrative, economic and socio-psychological. Social and psychological methods play a very important role in interacting with a remote worker. It is important to constantly interact with employees even at a distance, moral stimulation, development of initiative and responsibility among employees are also important.

For example, American company oDesk practices tracking the activities of homeworkers through technical means. For example, productivity control is set by working on the keyboard or using the mouse, the number of open windows, traffic to sites that are not related to work. In addition, Monitor Activity oDesk Team creates a slideshow of the online activity of remote workers, the so-called screenshots and webcam shots. This information is by no means for internal use. Customers that oDesk works with can make a request for a specific employee and use the materials captured from cameras and other technical means. It's not the only company in America using methods to track homeworkers. For example, Working Solutions monitors the phone conversations of its employees. Here, during parallel listening, the rise in tone in a conversation, incorrect answers, the presence of a background (for example, children's voices, barking dogs, the sound of a working receiver or TV, etc.) are very strictly monitored. The question of the legality of the application of such measures abroad in this case it is not worth it, since the use of these methods is carried out by agreement of the parties, that is, the employee is notified of the presence of listening or video filming. According to studies conducted by American sociologists, the majority of homeworkers working under constant supervision do not express any dissatisfaction, since their work is adequately paid, and over time, to some inconvenience, they simply develop the habit of not noticing them.

Speaking of more simple means control, then such, of course, is the system of sanctions (fines, forfeits) in case of violation of the contract, deadlines for the performance of work or illiterate performance of the task. Their sizes are negotiated in advance with the remote worker.

Nevertheless, the main incentive for the homeworker is the prospect of applying to him in the future, long-term cooperation. For this reason, the remote worker will try to complete the order efficiently and on time.

Anton A. Ageev, consultant of the First House of Consulting "What to do Consult"

Today, we increasingly hear such words as “freelance”, “remote work”, “work from home”. Some of your friends or acquaintances are already working remotely. And this is not surprising, in the field of employment, absolutely new form employee-employer relationship – remote work. What exactly is a remote worker? Let's figure it out.

At its core, a remote worker is a specialist who is not officially tied to a specific place of work. You can work remotely both at home and in increasingly popular co-working spaces. At the same time, it should be noted that you can work both officially, by signing an employment agreement, and without it. It all depends on the desire, for example, to work in a particular company.

What factors contribute to the growth of the popularity of remote work:

1. Financial savings. The employer does not need to rent an office, pay for business trips.
2. Workflow optimization. Google tools allow you to create shared documents for editing. Online meetings, online conferences, webinars have long become an integral part of our lives.
3. Go to online mode. Many professions have become online thanks to the Internet. Such a concept as an online audit has not scared anyone for a long time, and it makes no sense for web designers to sit in the office.
4. Variety of applications. It is simply unrealistic that a huge number of computer programs and applications are undoubtedly. Skype, MSLync, Viber, many screenshot apps, cloud storage services - all this only contributes to the productive work of remote workers.

Remote workers, in turn, consciously choose their path, too, for a number of reasons. It can be a dislike for "office plankton" or just a desire to travel and work. But not everyone succeeds in remote work. . And very often this happens due to the unpreparedness of the employee to work at home and his low self-organization. Here one desire is not enough. You will have to develop more than a dozen qualities and skills in yourself in order to earn the trust and recognition of the employer.

In remote work, the following principle applies: freedom in exchange for the responsibility of the employee. A remote employee is a free employee. But, in fact, for any employer, a remote employee is always a risk. It is a well-known fact that the main reason for the company's financial losses is the unfair performance of its duties by an employee. And in remote work, it is almost impossible to control an employee at all. The employer has no idea how the employee works, how and under what conditions he performs tasks.

In addition, when working with a remote employee for the employer, the risk of confidential information leakage increases. Here it is important for the employer to conduct an informational educational program on this issue or even sign a non-disclosure agreement.

Therefore, on many freelance exchanges for dedicated employees, they came up with a rating and portfolio, so that the employer would protect himself in case of poor-quality performance of the task. It is the rating and the presence of a good portfolio that are a kind of guarantee for the employer of your professionalism and experience in performing specific tasks.

So what are the main qualities that a remote employee must have in order to look like a professional in the eyes of the employer, who, in turn, considered the remote employee for a long-term job?

The most important qualities of remote employees:

1. Independence
2. A responsibility.
3. performance.
4. Efficiency at work.
5. Desire to learn new things and develop as a professional
6. Ethics in communication with the customer.
7. Employee versatility.
8. Discipline and self-organization
9. Respect for the employer.

Watch a special video from Maria Obeletsova about how a remote employee should really be and how to become just that:

As you can see, remote work is fraught with many nuances that must be understood. After all, having chosen this path, the remote employee must first of all be aware of his responsibility to the employer, for his work and reputation.

Conclusion

Having all of the above qualities, a remote employee will never feel discomfort while working remotely, will be able to build trusting relationships with customers and even find a permanent employer for a long time.

Each side of remote work has risks, but they are reduced to zero as people honestly, respectfully and professionally conduct a dialogue. The ideal remote employee for an employer is, of course, a responsible person who is ready to take responsibility, be responsible for his actions and solve problems constructively.

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How often in recent times we hear about telecommuting, freelancers, telecommuting and other things related to work outside the office. Of course, now it is difficult enough to imagine a virtual office, online meetings and much more that relates to remote work. However, as you know, everything is developing, and, perhaps, in the near future, many employers will be able to abandon offices and organize their business directly on the network. What is meant by remote work? Representatives of what professions or specialties can be involved in such work? How to formalize labor relations with employees working outside the office? In the article you will find answers to these and some other questions.

The concept of remote work

With development information technologies sometimes you don't have to be at the workplace to do any work. Already, on-line work is gaining ground, when employers and employees, using special technical means, maintain working contacts while being in different places.

First, let's figure out what kind of work is remote. First of all, this is work outside the office. The essential attributes of remote work are modern views telecommunications ( Email, web interfaces, software products for on-line interaction). The performers in this case are at a distance from the place where the results of their labor activity are in demand.

Such work may exist in various forms. For example, home work is carried out at the place of residence of the employee, while work can be performed both from materials and using tools and mechanisms allocated by the employer, and purchased by the homeworker at his own expense (Article 310 of the Labor Code of the Russian Federation).

The so-called freelancing is also a kind of remote work. In this case, individuals who are not associated with labor relations with any employers provide various services to both enterprises and organizations, and individuals. Freelancers usually formalize their employment relationship with a civil law contract.

The next type of remote work is remote work: the employer's office is not located in the region or city where the employee works.

Note that remote work can be carried out:

• at home (the workplace is equipped at home, the employee does not need to be present at the office);
• on business trips or at customer sites (for example, in construction companies when it is necessary to control the activities of construction teams, e-mail, ICQ, mobile communications are used);
• with the condition of obligatory appearance in the office with a certain frequency, for example, once every two weeks (this mode of remote work is suitable for managers of Internet projects: they only need a computer with Internet access and mobile communications to perform their duties, but sometimes they need to be present at planning meetings with management companies, attend seminars, conferences, trainings);
• in the territory of the employer, which is far from the place where the employer is based (for example, the employer is located in one city, and the employee performs work in another city).

As you can see, certain work can be performed within the framework of both civil law and labor relations. At first glance, civil law relations are more acceptable for remote work. However, at the same time, the employee has some additional responsibilities: he must independently take care of finding customers, studying the market, providing himself with resources and increasing professional level. Moreover, in accordance with the current legislation, he will have to register as individual entrepreneur. Not all employees want this, and therefore most of them still prefer labor relations.

Who can work remotely?

So, we have defined what counts as remote work. Now let's figure out what kind of specialists can be involved in work outside the office?

Remote work is most common among representatives of creative professions, such as designers, artists, writers, translators, programmers. In addition, the activities of media market specialists do not require a permanent workplace, for example, in the field of advertising, activities in the field of information technology, consulting, etc.

To work at home, typists, dispatchers on the phone, assemblers of various products or parts can be accepted. Their activities do not have to be controlled: you just need to check the results of their work.

Today, remote work is performed mainly by:

• designers (from landscape to web design);
• employees who maintain the website in working condition (internet marketers, site administrators, moderators, etc.);
• editors;
• journalists;
• IT-specialists (writing programs, testing software products).

Regulatory regulation

The current labor and civil legislation does not regulate the entire range of types of remote work. The only type that is more or less regulated is home work (Chapter 49 of the Labor Code of the Russian Federation and the Regulations on the working conditions of homeworkers<1>). But even in relation to him, there are many questions and ambiguous interpretations of the norms of the Labor Code.

<1>Approved by the Decree of the State Committee for Labor of the USSR, the Secretariat of the All-Union Central Council of Trade Unions of September 29, 1981 N 275 / 17-99.

For example, it is not clear how to keep a time sheet of a homeworker, whether it is possible to fire him for absenteeism or appearing in a state of alcoholic or other toxic intoxication. In addition, the procedure for assessing the conditions for performing work at home for compliance with labor protection requirements by the employer raises questions.

In 2011, the Russian Union of Industrialists and Entrepreneurs put forward the idea to separately prescribe in the Labor Code the provisions on the labor of workers outside the employer's territory. However, this idea was not developed, as the public's attention was riveted to more scandalous norms, such as an increase in the length of the working week and others, but in vain. For example, currently a Moscow company, in order to remotely use the services of an employee in Nizhny Novgorod, who, say, represents an online store, must register a separate structural unit there - a branch or representative office. However, this is not always advisable, especially if this employee works at home via the Internet and the organization does not have other employees in Nizhny Novgorod. As a result of this, organizations often evade registration, and, accordingly, there are risks of being held liable by the state labor inspectorate or the tax service.

Advantages and disadvantages of remote work

Like any other work schedule or method of organizing work, remote work has its pros and cons. For clarity, we present them in the table.

For workers, remote work also has both advantages and disadvantages. negative sides. For example, they like the lack of control from the authorities, the dress code. For some workers, remote work is an opportunity to cut off contact with people they don't like. In addition, people who work outside the office like that they independently organize the work process and can do household chores in parallel.

At the same time, workers may not be satisfied with the lack of society, a stable workload and constant earnings. If the relationship is formalized by a civil law contract, then employees are not provided with vacations and other guarantees and compensations provided for by labor legislation.

As you can see, there are advantages and disadvantages for both the employee and the employer. In any case, the issue of using remote work in the company is decided by the employer.

Features of registration of labor relations

When using remote work, the employer may have some difficulties with determining the workplace, accounting for working hours, and the possibility of bringing to disciplinary responsibility.

Let's start with the employment contract. Article 57 of the Labor Code of the Russian Federation contains a list of information and conditions to be included in an employment contract. So, one of the required job condition. Moreover, if an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area, it is necessary to indicate the place of work, the separate structural unit and its location.

Usually, the place of work is determined by the location of the employer - an organization or an individual entrepreneur, and in order to fulfill the above requirement of the Labor Code, it is enough to indicate in the employment contract that the place of work is a specific organization, for example Vasilek LLC. Note: although the labor legislation does not contain a requirement to indicate the address of the place of work, we recommend that you nevertheless indicate the address of the employer in the employment contract.

If an employee is accepted for remote work in a separate structural unit located in another locality or other locality, it is required to fix in the employment contract that the place of work is the corresponding separate structural unit of the organization located at a specific address. For example, if Romashka LLC is located in Moscow, and the employee is admitted to the Nizhny Novgorod branch of Romashka LLC, it is necessary to indicate this and indicate the address of the branch in Nizhny Novgorod.

If an employee is accepted for permanent job in another locality, but there is no separate structural unit of the organization, it is necessary to indicate in the employment contract that this organization is the place of work, and additionally note that the employee will perform his labor duties in another locality. In this case, the question may arise: will the employee not have to arrange a business trip? You don't have to. The specified condition in the employment contract just confirms that the employee works where he lives.

Note. Indication in the employment contract locality for the implementation of a labor function that is different from the location of the organization, will help resolve the issue of vacancies available to him in this area, in cases established by the Labor Code:

• Art. 74 - if the terms of the employment contract determined by the parties have changed for reasons related to changes in organizational or technological working conditions, and the employee does not agree to work in them;
• Art. 76 - when deciding on the removal of an employee in the event of suspension for a period of up to two months of a special right that an employee has (licenses, rights to manage vehicle, the right to bear arms, another special right), if this entails the impossibility for the employee to fulfill the obligations under the employment contract;
• pp. 2, 3 h. 1 tbsp. 81 - when deciding on the termination of an employment contract at the initiative of the employer in connection with a reduction in the number or staff of employees or inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification;
• pp. 2, 8, 9, 10 or 13 h. 1 art. 83 - when deciding on the termination of an employment contract due to circumstances beyond the control of the parties;
• Art. 84 - in case of termination of the employment contract due to violation of the rules for its conclusion, if the violation of these rules excludes the possibility of continuing work;
• Art. 261 - upon dismissal of a pregnant employee due to the expiration of the employment contract, which was concluded for the duration of the duties of the absent employee.

An additional condition that may be included in the employment contract is the specification of the place of work - an indication of the structural unit and its location or workplace. Note that with remote work, this may not be at all. We recall that, by virtue of Art. 209 of the Labor Code of the Russian Federation, a worker is understood to be a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer. Therefore, when working remotely, you can:

• specify in the employment contract, while the employee will have to be in certain places, but these places will not be controlled by the employer;
• do not specify in the contract, thereby allowing the employee to independently determine the place where he will perform the work.

On the one hand, it is very important to indicate the workplace, since it is the absence from it that can be regarded by the employer as absenteeism, respectively, it is possible to apply disciplinary measures up to and including dismissal.

Note. Absenteeism - absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift) (clause "a "clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

On the other hand, for the employer, the main thing is the performance of the work and is it so important where the employee is, if all the work is done on time and with high quality.

We cannot but highlight the point of view of some authors that, even if the workplace of a remote worker is not fixed in the employment contract, it can be established later, for example, by order or other local regulatory act. This position is based on paragraph 35 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2. Therefore, if it is important for the employer that the remote worker be in a specific place for some time, an order can be issued to determine the workplace. Accordingly, the employer will have legal basis for the application of disciplinary measures.

Following required condition employment contract - labor function(work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). We believe that in the case of remote work, the labor function of an employee should be clearly defined. This can be done both in the employment contract and in job description so that the parties to the employment relationship can clearly understand the obligations of the employee, the fulfillment of which the employer may require.

If the employee's labor function is not described in detail, disagreements may arise between the parties to the employment contract, which, as practice shows, are not always resolved in favor of the employer.

Time tracking

Working time - the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods that relate to working time. Article 91 of the Labor Code of the Russian Federation establishes the obligation of the employer to record the time actually worked by each employee. For this purpose, the Decree of the State Statistics Committee of Russia dated 01/05/2004 N 1 provides for unified forms T-12 "Time sheet and payroll calculation" and T-13 "Time sheet". But how to take into account working time an employee who works outside the office?

The legislator has not regulated this issue either, therefore, we believe that the accounting of the working time of an employee working at a distance must be kept, relying on his good faith.

Based on Art. 21 of the Labor Code of the Russian Federation, in accordance with which the employee must conscientiously fulfill his labor duties and comply with the rules of the internal labor schedule, it is possible to fix in the employment contract a provision on the obligation to notify the employer about absence from the workplace (if it is determined by the employer) and to prohibit working beyond the established working hours time.

It turns out that the time sheet will be filled out on the basis of data on the working hours of a particular employee, as well as deviations from the norm and working hours. This approach is also confirmed by guidelines for the use of unified forms, according to which the costs of working time are taken into account in the time sheet either by the method of continuous registration of attendance and absence from work, or by registering only deviations (absenteeism, lateness, overtime hours, etc.).

Document management for remote work

Currently, the issue of the exchange of documents between a remote worker and his employer is not regulated at the legislative level, however, like most of the nuances of the labor activity of workers in this category.

Unfortunately, even with the existence federal laws on electronic digital signature, the norms of labor legislation still do not provide for the possibility of drawing up documents regulating labor relations (employment contract, orders, etc.), in in electronic format and signing them with an analogue of a handwritten signature, for example, an electronic digital signature.

Of course, it is best to personally meet with the employee when his signature on documents is required. However, this is not always feasible. We believe that it is possible to send documents by mail (with a list of attachments and a return receipt). It is worth noting that with such an exchange of documents there is a risk that they will be lost or copies of the employer will not be returned by the employee, but this is currently the only way to comply with labor laws.

Summarize

Remote work is associated with certain difficulties, since it is practically not regulated by labor legislation, so the majority of workers who work outside the office remain in the shadows and are formally unemployed.

Until there is clarity on the regulation of remote work, we recommend concluding not an employment contract, but a civil law contract. It is on the basis of the latter that the performer will create artistic or musical works, translate or edit texts, hold presentations in his city, etc.

A.I. Suverneva

Journal Expert

"Salary:

Accounting

and taxation"