Today, many businessmen have realized that maintaining a remote employee is much cheaper than maintaining an office employee. No need to rent a room or arrange workplace. In addition, when the pool of candidates is not limited to just your city, you can hire a truly high-quality specialist and vary the amount of payment significantly. Do you know how to officially hire a remote employee and properly formalize the relationship with him?
So, according to current legislation, a remote worker can be registered in two ways:
1). By concluding an employment contract(and then all relationships between them are regulated by the norms Labor Code RF)
2). By concluding a civil contract(then the relationship will be regulated by the provisions of the contract, or contract for the provision of services, or contract for the performance of work, etc.).
The general recommendation is this. If you need official employee for a large-scale but one-time project (for example, creating a website), it will be more convenient to conclude a civil law agreement. The subject of such an agreement must be a specific result. Upon completion of cooperation, a certificate of completion of work (or services provided) is drawn up. The act confirms that the work was delivered by the contractor, accepted by the customer, and it is the basis for payment for the work performed under the terms of the concluded contract.
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For the purpose of long-term cooperation, to perform ongoing ongoing tasks, it is more convenient to register a remote worker in accordance with the requirements of the Labor Code of the Russian Federation. Just last year, the Labor Code of the Russian Federation introduced new chapter 49.1., regulating the work of remote employees. The law called them “teleworkers.” The basis of the relationship between an employer and a remote worker is the exchange electronic documents. Via the Internet the following is carried out:
- conclusion of an employment contract;
- familiarization with the employer’s local documents;
- request and issuance of work-related documents.
Send the candidate a copy of the employment contract (already signed by you), by e-mail , or using other electronic document management options and receive a signed and scanned copy from the candidate. From the moment you receive an electronic document with two signatures labor Relations are considered completed.
Within three calendar days from the date of receipt of the signed agreement, you must send to the employee a completed copy of the employment contract on paper custom made by post with notification of delivery.
Familiarize the employee with the internal documents of your organization by sending them electronically and receiving mandatory confirmation from the employee that he has read them.
Resolve with the employee the issue of entering information about remote work in his work book. Entry into the employee’s work book is entered at the request of the employee. If the remote employee insists, the work book is sent to the employer by mail.
Lawyers advise remembering that many conditions for remote work are not directly stated in the Labor Code of the Russian Federation, but are subject to agreement between the employee and the employer. Therefore, it is very important to compose correctly and as completely as possible employment contract. We recommend that the following conditions be included in the employment contract:
- The nature of the work is remote
- Procedure for using equipment for work (whether it is provided by the employer or the employee’s personal equipment is used)
- Various employee compensations (payment for communications, Internet traffic, etc.)
- Terms, size, payment procedure for work
- Procedure for granting leave to an employee
- Requirements for the employee to use certain software and hardware, special equipment, encryption tools, etc.
- Working hours (as a rule, the working and rest hours are determined by the employee himself, but the parties have the right to provide for other conditions in the contract).
Today, the concepts of “remote work” and “distance workers” have become firmly established in everyday life. However, many questions related to concluding an employment contract with remote employees and the specifics of their labor situation remain open.
Who is a remote worker
According to Part 2 of Art. 312.1 of the Labor Code of the Russian Federation, remote workers are considered to be persons who have entered into an employment contract on remote work.
Remote work is considered to be work that corresponds the following signs(Part 1 of Article 312.1 of the Labor Code of the Russian Federation):
The employee performs his duties outside the location of the employer (branch, representative office, other separate division, including those located in another area);
Outside a stationary workplace;
Outside the territory or facility controlled by the employer;
Subject to the performance of his functions, the employee maintains contact with the employer directly through the Internet or other public information and communication network.
Note that in this case the employer is deprived of the opportunity to directly or indirectly control the workplace of such an employee.
Labor legislation does not establish what position an employee must hold with whom an employment contract for remote work can be concluded. Thus, almost any employee can be made remote. Another issue is whether the employer decides on the feasibility of remote work independently. Thus, web designers, programmers working remotely, and other employees whose work does not require their presence in the office can be made remote workers.
It should be remembered that remote workers are subject to labor legislation (Part 3 of Article 312.1 of the Labor Code of the Russian Federation).
Note that the concept of “remote worker” is quite different from the definition of such a category of workers as “homeworkers”. At first glance, both of these categories of workers seem similar, however legal regulation their positions differ in many ways.
The main differences between remote workers and homeworkers are given in Table. 1.
Table 1. Remote workers and homeworkers: main differences
|
Working conditions |
Homeworkers |
Remote workers |
|---|---|---|
|
Workplace organization |
The workplace is located at the employee’s home (Part 1 of Article 310 of the Labor Code of the Russian Federation). |
The employee does not have a clearly defined workplace. Such an employee can perform his functions both at home and in another place (for example, in a room rented by the employee himself) |
|
Nature of work performed |
The work of homeworkers is usually aimed at producing consumer goods, providing individual species services to citizens and enterprises (clause 3 of the Regulations on the working conditions of homeworkers, approved by Resolution of the State Committee for Labor of the USSR and the Secretariat of the All-Union Central Council of Trade Unions dated September 29, 1981 No. 275/1799). Basically, the work of homeworkers is mechanistic in nature and involves performing monotonous operations. |
The labor function of an employee is associated mainly with intellectual work. To carry it out, the employee usually uses a computer and the World Wide Web. |
|
Materials and tools |
The employer supplies the employee with the materials and tools necessary for him to perform his labor function (Part 1 of Article 310 of the Labor Code of the Russian Federation). If the tools belong to the employee, the employer pays him compensation for their wear and tear (Part 2 of Article 310 of the Labor Code of the Russian Federation) |
The employer supplies remote worker hardware, software technical means, information security means and other means in the manner prescribed by the employment contract. When an employee uses his own equipment, software and hardware, information security tools and other means, the employee is paid compensation in the manner determined by the employment contract (Part 1 of Article 312.3 of the Labor Code of the Russian Federation) |
|
Third party participation |
Relatives of the homeworker can participate. At the same time, they do not have an employment relationship with the employer (Part 1 of Article 310 of the Labor Code of the Russian Federation) |
The employee personally performs his work function |
|
Operating mode |
The employee independently determines his own work schedule |
The working hours can be established in the employment contract. But if it is not established in the contract, the employee determines it for himself independently (Article 312.4 of the Labor Code of the Russian Federation) |
|
Electronic document management |
Not provided |
Widely applied |
We are hiring a remote worker
When applying for a remote worker to work, two situations are possible.
An employee may personally come to the employer’s office, for example, to provide documents or sign an employment contract. In this case, his registration for work is no different from the registration of other employees.
If an employee does not have the opportunity to come to the employer’s location, his registration for work takes place through electronic document management. But even in this case, the procedure for registering an employee for work is practically no different from the usual registration of employees.
Let’s take a closer look at the procedure for applying for a job as a remote worker.
Documents required for concluding an employment contract
Article 65 of the Labor Code of the Russian Federation provides a list of documents that must be provided to an employee when concluding an employment contract. Such documents are:
Passport or other identification document;
Work book, except for cases when an employment contract is concluded for the first time or the employee starts working on a part-time basis, and also if the employee does not have a work book of the standard standard in the Russian Federation or the work book is missing due to its loss, damage or for another reason;
Insurance certificate of state pension insurance, except for the case when an employment contract is concluded for the first time. Note that if an employment contract is concluded with a remote worker for the first time and through the exchange of electronic documents, such an employee receives an insurance certificate independently (Part 4 of Article 312.2 of the Labor Code of the Russian Federation);
Military registration documents - for those liable for military service and persons subject to conscription for military service;
Document on education, qualifications or special knowledge - when applying for a job that requires special knowledge or special training;
A certificate confirming the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitative grounds when entering a job related to an activity that is not permitted to persons who have or have had a criminal record, are or have been subject to criminal prosecution.
There is no requirement to provide other documents of the Labor Code of the Russian Federation, including Chapter 49.1 of the Labor Code of the Russian Federation.
A remote worker can send the following documents (Part 3 of Article 312.2 of the Labor Code of the Russian Federation):
In electronic form (for example, in the form of scanned copies sent to the employer’s email address). In this case, the employer is obliged to send the employee an electronic document signed with an enhanced qualified electronic signature (hereinafter - ES), notifying of the receipt of the relevant documents (Part 4 of Article 312.1 of the Labor Code of the Russian Federation). Please note that since the employee sends the relevant documents in electronic form, the accuracy of their copies can also be confirmed by the employee’s electronic signature;
By mail by registered mail with notification of delivery. In this case, copies sent to the employer must be notarized. Please note that Part 3 of Art. 312.2 of the Labor Code of the Russian Federation directly provides for the possibility of the employer requiring the remote employee to send the specified documents by mail in the given order.
Note!
According to Part 6 of Art. 312.2 of the Labor Code of the Russian Federation, information about remote work, by agreement of the parties, may not be entered into the work book of such an employee. If an employee goes to work for the first time, he does not have to issue a work book. A copy of the employment contract sent to the employee will be a document about his work experience and work activity.
But if the employee insists on making the appropriate entry in the work book, he must provide it personally or send it to the employer by registered mail with return receipt requested (Part 7 of Article 312.2 of the Labor Code of the Russian Federation). We will tell you below how to correctly fill out a work book in this case.
Familiarization with local regulations of the employer
In accordance with Part 3 of Art. 68 of the Labor Code of the Russian Federation, when hiring (before signing an employment contract), the employer is obliged to familiarize the employee with the internal rules against signature. labor regulations, other local regulations(hereinafter referred to as LNA), directly related to labor activity and the collective agreement.
When hiring a remote employee, the employer can send him such documents in electronic form (Part 5 of Article 312.2 of the Labor Code of the Russian Federation). In turn, the remote worker must send the employer an electronic document confirming the fact that he has familiarized himself with the sent documents. Such a document must also be certified by the employee’s enhanced qualified electronic signature (Part 4 of Article 312.1 of the Labor Code of the Russian Federation).
Registration of an employment contract
In order for an employment contract with an employee to be considered an employment contract for remote work, it must reflect a number of essential conditions.
Remote work condition
The obligation to indicate in the employment contract that the work is remote does not directly follow from the Labor Code of the Russian Federation. But you need to pay attention to the next point.
As a general rule, one of the mandatory conditions of an employment contract is the condition on the place of work. And in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another area, the employment contract must indicate the place of work indicating the separate structural unit and its location (Part 2 of Article 57 of the Labor Code of the Russian Federation).
The current legislation of the Russian Federation does not contain rules directly indicating what should be understood as the place of work of remote employees and how to reflect the condition of the place of work in the employment contract concluded with these employees. But part 1 of Art. 312.1 of the Labor Code of the Russian Federation indicates that remote work is considered to be work that an employee performs outside the location of the employer, outside a stationary workplace. Please note that in this case, the employment contract does not need to list all the features of remote work.
Thus, the employment contract only indicates the fact that the work is remote.
According to Art. 57 of the Labor Code of the Russian Federation, a mandatory condition included in an employment contract is the condition of the place of work. At the same time, Art. 57 of the Labor Code of the Russian Federation does not make exceptions for remote workers. From the definition of remote work given in Art. 312.1 of the Labor Code of the Russian Federation, it follows that for an employee the place of permanent work is his location (see letter of the Ministry of Finance of Russia dated 08.08.2013 No. 03-03-06/1/31945). Based on the above, this condition can be formulated as follows: “The work under this employment contract is remote. The place of work is the location of the employee, determined by the employee independently, located outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another area), outside a stationary workplace, territory or facility directly or indirectly under the control of the employer "
Due to the fact that the permanent place of work for a remote employee may be the territory assigned to him, we consider it possible to indicate in the employment contract the following wording of the remote employee’s place of work: “The work under this employment contract is remote. Permanent place work, for the purposes of this employment contract, the territory assigned to the employee is considered, namely: _________ (as an option - Moscow).”
Place of conclusion of the employment contract
The employment contract specifies the location of the employer as the place of concluding the employment contract. In this regard, the location of the organization (its head office) should be indicated as the location of the employer. Conditioned this conclusion next.
According to Part 1 of Art. 312.2 of the Labor Code of the Russian Federation, the location of the employer is indicated as the place of concluding an employment contract for remote work. According to paragraph 2 of Art. 54 of the Civil Code of the Russian Federation, the location of an organization is the location of its executive body. For organizations with branches and representative offices, the location will be the location of the organization itself (its head office).
However, there may be cases when an employee is hired by the head of a branch (representative office). Such powers can be granted to him on the basis of a power of attorney issued by the organization (clause 3 of article 55, clause 4 of article 185.1 of the Civil Code of the Russian Federation). In this case, when concluding an employment contract, it is also necessary to indicate the location of the organization (its head office) as the place of concluding the employment contract.
This condition of the contract can be formulated as follows: “The place of concluding the employment contract is _______ (indicate the location of the organization).”
Deadline for confirmation of receipt of electronic documents
The next condition that must be reflected in the employment contract with a remote worker is the condition on the timing of sending confirmations in the form of electronic documents certified by electronic signature.
According to Part 4 of Art. 312.1 of the Labor Code of the Russian Federation, an employer and a remote worker can maintain communication by exchanging electronic documents. In this case, both are required to use enhanced qualified electronic signature. Each party to an employment contract, when receiving electronic documents from the other party, must confirm their receipt. This should be done by sending the counterparty a confirmation document in electronic form. Note that the Labor Code of the Russian Federation does not oblige the employee and employer to sign such a document with an enhanced qualified electronic signature. However, in order to protect the confidentiality of information, we recommend that such an obligation be established for the employee in the employment contract. The period within which such confirmation must be sent must also be fixed in the contract.
This can be done by including in the employment contract next condition: “The party that has received an electronic document from the other party via the Internet or other telecommunications network is obliged to send an electronic confirmation of receipt of such document to the other party. The corresponding confirmation, signed with an enhanced qualified electronic signature, is sent within _______ (optionally one business day) from the moment of its receipt.”
Note that the Labor Code of the Russian Federation does not provide for the obligation of both the employee and the employer to provide such confirmation with any specific content. The only requirement is that the electronic document be sent to one party or another. Thus, the employer can independently develop the content of such confirmation. In this case, a sample electronic confirmation can be an integral appendix to the employment contract.
Conditions on the technical equipment of the employee
According to Part 8 of Art. 312.2 of the Labor Code of the Russian Federation, an employment contract may provide for an additional condition regarding the obligation of a remote worker to use equipment, software and hardware, information security tools and other means provided or recommended by the employer when performing his duties. Moreover, Part 1 of Art. 312.3 of the Labor Code of the Russian Federation establishes that the procedure and period for providing an employee with equipment, other technical means, as well as software must be provided for in the employment contract.
At the same time, if the employee uses his own equipment and software, the employer is obliged to pay him monetary compensation(Article 188, Part 1 of Article 312.3 of the Labor Code of the Russian Federation). The period and procedure for payment of such compensation should also be reflected in the employment contract.
If the employer intends to provide the employee with equipment, for example, the following wording is acceptable: “The employer undertakes to provide the employee with the following equipment to perform his job functions:
Personal computer ________ (specify the brand and model of the PC);
- ____________________________ (indicate other equipment that the employer intends to provide to the employee, as an option, a printer, scanner, etc.).
The employer undertakes to provide the employee with the following software:
Database "Consultant Plus";
1C Accounting program;
- ____________________________ (indicate any other software that the employer intends to provide to the employee).
The employer undertakes to provide the employee with the equipment and software listed in this paragraph _____________ (indicate the period during which the relevant equipment should be provided). The equipment and software listed in this paragraph are provided to the employee by ____________ (as an option, delivery to the employee’s place of residence).”
If an employer wants to pay an employee compensation for the use of equipment and software owned by the employee, the corresponding condition can be formulated as follows: “The employer undertakes to pay monthly compensation in the amount of __________ rubles. for the use by an employee of the following equipment and software in the performance of his job functions:
Personal computer ________ (specify the brand and model of the PC);
Mobile phone _____________ (specify brand and model mobile phone), equipped with a work number ____________ (indicate work phone number);
- ____________________________(specify other equipment);
Legal reference system ________________(indicate name);
Accounting software _______________(specify name);
- ____________________________ (indicate other software for which compensation is paid).
The compensation provided for in this paragraph is paid to the employee within the following terms _______ (as an option - within the terms provided by the employer’s LNA for payment of wages).”
Conditions on the work and rest schedule of a remote worker
If the employee does not set his own working time and rest schedule, the corresponding condition must also be enshrined in the employment contract (Part 1 of Article 312.4 of the Labor Code of the Russian Federation).
“A teleworker is assigned an eight-hour working day. The start time of the working day is ______, the end time of the working day is ________.”
Along with this, the employer must provide a condition on the procedure for granting leave to the employee (Part 2 of Article 312.4 of the Labor Code of the Russian Federation). This condition may repeat the conditions provided for in employment contracts with “office” employees of the organization.
Procedure and deadline for submitting reports to the employer
According to Part 1 of Art. 312.3 of the Labor Code of the Russian Federation, the employment contract should provide for a condition on the procedure and timing for the submission of reports by a remote worker to the employer. This condition can be formulated as follows: “The remote worker submits to the employer a weekly report on the work done. The corresponding report is provided in electronic form ____________________ (specify additional conditions for the provision of the report by the employee) by email address __________________, no later than __________ (alternatively - 17-00 Friday of the week for which the report is provided).”
Additional grounds for dismissal
In the employment contract, the employer has the right to provide additional grounds for dismissing an employee at the initiative of the employer (Part 1 of Article 312.5 of the Labor Code of the Russian Federation).
Please note that additional grounds should not be of a discriminatory nature (Article 3 of the Labor Code of the Russian Federation) and should not worsen the situation of remote workers compared to other categories of workers.
For example, the fact of a change in his living conditions is not grounds for dismissal of an employee. Unlike a homeworker, an employee is not required to perform his work functions at home. An employee’s change of place of residence will not affect the performance of his official duties. In this case, there is a high risk that the dismissed employee will achieve reinstatement at work, citing the discriminatory nature of such a condition.
At the same time, an employee’s systematic refusal to use information security tools provided or recommended by the employer at work may become a valid reason for dismissal.
Additional reasons for dismissal may include the following:
Repeated violation by a remote worker of deadlines for submitting reports on work performed;
Repeated failure by the employee to comply with the deadlines for completing the work assigned to him or the non-compliance of its results with the requirements set out in the employment contract;
Repeated violation of deadlines for confirmation by a remote worker of the fact of receipt of documents in electronic form.
It is not enough for the employer to simply provide the relevant grounds in the employment contract. A procedure for establishing the fact of such violations should be developed and enshrined in the LLA (internal labor regulations).
Thus, the fact of an employee’s refusal to use the information security tools provided to him must be documented. This can be done, for example, by compiling technical specialist a report on the basis of which an act on the relevant violation is drawn up.
Conditions for filling out a work book
By agreement of the parties, the work book may not be filled out (Part 6, Article 312.2 of the Labor Code of the Russian Federation). This condition can be reflected in the employment contract as follows: “Information about the employee, the work he performs, transfers to another permanent job and about the dismissal of an employee, as well as the grounds for termination of the employment contract and information about awards for success in work, are not entered into the employee’s work book.”
Information protection clause
The employment contract may provide for the procedure for the employee to use information security tools in accordance with the employer’s recommendations (Part 8 of Article 312.2 of the Labor Code of the Russian Federation).
The Labor Code of the Russian Federation does not specify what is meant by information security measures provided or recommended by the employer.
According to Art. 2 of the Law of the Russian Federation dated July 21, 1993 No. 5485-1 “On State Secrets” means of information protection are technical, cryptographic, software and other means intended to protect information constituting a state secret, the means in which they are implemented, as well as control means effectiveness of information protection. We believe that this definition can also be applied to cases of concluding an employment contract with a remote worker.
For example, a means of protecting information may be an electronic document encoding system developed by the employer.
Let us note that the Labor Code of the Russian Federation does not force the employer to use such means of protection without fail. The employer himself determines the level of secrecy of the information that he intends to exchange with the remote worker. If the information contains information classified by the employer as a trade secret, it is more advisable to protect it.
An employer can independently develop such protective equipment (with the help of its employees or by order of a third-party organization) or use ready-made protective equipment by purchasing them from a specialized organization.
In any case, the employee’s obligation to use such means must be stated in the employment contract. This condition can be formulated as follows: “When performing his job duties, the employee is obliged to use the following information security tools provided by the employer:
- _____________________ (indicate the name of the information security tool).
These information security tools are used by the employee in accordance with the instructions for their use provided by the employer and which are an integral annex to this agreement.”
Conclusion of an employment contract
Remote worker - sole employee, with whom you can conclude an employment contract by exchanging electronic documents, as follows from the provisions of Art. 312.2 Labor Code of the Russian Federation. Agreements to amend the employment contract are concluded in a similar manner.
Important: simply exchanging electronic documents is not enough to conclude an agreement. The employer, no later than three calendar days from the date of conclusion of such an employment contract, is obliged to send the employee by registered mail with notification a duly executed copy of this employment contract on paper (Part 2 of Article 312.2 of the Labor Code of the Russian Federation).
In this regard, we note the following.
Part 2 Art. 312.2 of the Labor Code of the Russian Federation states that the employer is obliged to send the employee one copy of the employment contract by mail. This copy must be signed by the employer and properly executed. At the same time, the Labor Code of the Russian Federation does not impose on the remote worker the obligation to send the employer an employment contract with his signature. From the analysis of Art. 312.2 of the Labor Code of the Russian Federation, we can conclude that to conclude an employment contract on the part of the employee, it is enough just to exchange electronic documents signed by the employee’s enhanced qualified electronic signature and send an electronic confirmation to the employer that the documents sent to him via the Internet have been received. The employee is not required to send the employer a paper copy of the employment contract signed by the employee himself.
The employer himself should not send the employee two signed copies of the contract and wait for the return of one of them. He can consider his obligation to send the contract in paper form fulfilled from the moment he receives notification of delivery of the relevant correspondence to the employee against signature.
The order of acceptance to work
The employee should be familiarized with the employment order against signature (Part 2 of Article 68 of the Labor Code of the Russian Federation). The corresponding order in electronic form, signed by an enhanced qualified electronic signature of the employer, must be sent to the employee.
The fact that the employee has received the order will be indicated by an electronic notification from the employee with an enhanced qualified electronic signature.
After reading the order, the employee must also sign it with his enhanced qualified electronic signature and send it to the employer.
The employer's receipt of the order signed by the employee will be evidenced by an electronic notification received by the teleworker. The corresponding conclusions can be drawn from the analysis of Part 4 of Art. 312.1 Labor Code of the Russian Federation.
Personal card
The personal card of a remote worker is filled out in the same manner as when hiring a regular employee. The norms of the Labor Code of the Russian Federation do not provide for any specifics regulating the procedure for filling it out.
Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 approved form No. T-2 “Employee’s Personal Card”. Please note that from January 1, 2013, the use of this form is not mandatory. However, the employer has the right to use this form when hiring employees.
Please note that the unified form of a personal card requires the affixing of the employee’s signature when issuing it. If a remote worker is hired, the employer should send a completed personal card to such an employee in electronic form. The employee must sign it with his enhanced qualified electronic signature and send it back to the employer. We note that the corresponding registration must also be accompanied by the exchange of electronic notifications about the receipt of an electronic document between the employee and the employer (Part 4 of Article 312.1 of the Labor Code of the Russian Federation).
Employment history
Unless the employment contract with the employee provides otherwise, the employer is obliged to make a corresponding entry in the employee’s work book.
The form, procedure for maintaining and storing workers’ work books, as well as the procedure for filling them out are established by the following regulations:
- Decree of the Government of the Russian Federation dated April 16, 2003 No. 225 “On work books”;
Order of the Ministry of Finance of Russia dated December 22, 2003 No. 117n “On work books”;
- Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69 “On approval of the Instructions for filling out work books.”
The introduction of new norms regulating the legal status of remote workers into the Labor Code of the Russian Federation did not entail changes in the relevant documents.
Thus, the work book of a remote worker is filled out in the same order as the work book of an “office” worker.
An example of filling out a work book for a remote worker is given in Table. 2.
Table 2. Example of filling out a work book for a remote worker
|
Information about the work of TK No. 0000001 |
|||||
|
Entry no. |
Information about hiring, transfer to another permanent job, qualifications, dismissal (indicating reasons and reference to the article, clause of the law) |
Name, date and number of the document on the basis of which the entry was made |
|||
|---|---|---|---|---|---|
|
Limited Liability Company "Romashka" (LLC "Romashka") |
|||||
|
Recruited to the engineering department as a system administrator |
Order No. 13/09 dated April 20, 2017 |
||||
Time sheet
The remote worker is included in staffing table organization along with other employees. As in the case of other employees, the employer is obliged to ensure that the working time of such an employee is recorded (Article 91 of the Labor Code of the Russian Federation). But according to Part 1 of Art. 312.4 of the Labor Code of the Russian Federation, unless otherwise provided by the employment contract on remote work, the working hours and rest periods of a remote worker are established by him at his own discretion.
The question arises about how to keep track of working hours in this case?
The competent authorities do not comment this situation. However, in our opinion, in this case, a presence mark (“I” or “01”) is placed on the work time sheet on weekdays, on weekends and non-working days. holidays- rest mark (“B” or “26”). The number of hours worked is determined in accordance with the terms of the employment contract.
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 while working remotely, whether a work schedule is established for him and what the procedure for dismissal is.
Many citizens prefer to work from home, regardless of whether they have the opportunity to visit the workplace every day. Despite the fact that remote workers can perform the same work as workers on the territory of the organization, the conditions of their employment differ from the standard ones. About how to formalize labor relations with a remote worker and what they are entitled to insurance payments and what is the procedure for dismissal we will tell in this article.
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general information
Distinguish following methods remote work:
- Remote work.
- Home work.
Note: Difference between home and telework
Citizens working remotely are subject to general norms labor legislation. (Part 3 of the Labor Code of the Russian Federation).
The specifics 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 an electronic digital signature and exchanging electronic documents between the employer and employees.
Remote workers should be included in the organization's staff.
- Controlled by the employer.
- The employee is there or must arrive there as needed.
Before concluding an employment contract, the employer is obliged to familiarize the employee with various local acts:
- Labor regulations.
- Regulations on bonuses.
- Collective agreement, etc.
Implement this procedure possible through electronic exchange between an employer and an employee who works remotely. Documents must be signed electronically.
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 04/06/2011, article 6.
Labor 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 points:
- Drawing up an employment contract.
- Issuing an employment order.
- Establishing a personal card.
- Making an entry in the work book.
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Work and rest schedule of a remote employee
If possible, the remote worker sets the work schedule independently. When work is required to be completed at a specific time, then this rule is fixed in the employment contract or additional agreement.
Example of an entry: “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 leave is fixed in the employment contract and is carried out in accordance with the general rules.
Example of an entry: “The employee is granted annual paid leave of 28 calendar days according to the vacation schedule.”
A remote worker works when he wants, so he has no days off.
The remote worker worked on a day off. How to pay for this if the employment contract provides for the establishment of working hours and rest time at the discretion of the employee?
Note: Explanations on this issue were given by Rostrud in the review for May 2018.
Labor legislation does not provide special order providing remote workers with rest days for working on weekends. Since the employment contract does not define the work and rest schedule of such an employee (the employee determines the work and rest schedule at his own discretion), it is impossible to count his work on a specific day.
Exchange of documents in electronic form
An employee working remotely can contact the employer via email. For example, if he needs to convey some information or write a statement. Appeals are certified with an electronic signature.
To exchange documents electronically, both parties must have a strengthened qualified electronic signature issued by a specialized certification center.
If a remote worker needed copies of some work documents and did not indicate in the application that they could be transmitted in electronic format, the employer must send them by registered mail with notification. Copies should be sent to the employee within 3 working days from the date of 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 leave, etc.) in accordance with common grounds.
To receive these payments, you must send the original documents corresponding to the case (certificate of incapacity for work, certificates) to the employer by registered mail.
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
Direct responsibilities of the employer to protect and ensure non-hazardous work conditions for remote employees:
- Follow the instructions of the State Labor Inspectorate.
- Pay premiums for insurance of remote workers against occupational diseases and accidents.
- Investigate accidents that occur to an employee.
- Investigate the employee's occupational diseases.
- Familiarize workers with labor safety requirements when working with equipment.
The employer is not obligated to provide remote employees with special clothing or training in safe work performance, 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 and remote workers and workers who have entered into labor relations with employers - individuals, which are not individual entrepreneurs. In this regard, regarding working conditions homeworkers and teleworkers- special assessment of working conditions not carried out.
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Dismissal of 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 employer exchange documents electronically, then the dismissal order should be sent in a similar way. The employee who is familiar with the order must send the document back, verifying 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 payment 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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Increasingly, employers are resorting to remote workers. Is this related to that? that remote work has a number of advantages for both the employee and the employer. An employee can be at home, in a cafe on the street and at the same time perform job responsibilities and be an employee of the organization.
The employer does not need to prepare a workplace, does not need to purchase a computer or office for a remote employee. The employee does not need to spend money on travel to the workplace; he can structure his working day in accordance with his interests and the needs of the company.
Not all positions can be remote. For example, a salesperson cannot work remotely, since he must be present at his workplace behind the store counter. Remote work is usually typical for such professions as sales managers, programmers, lawyers, sales representatives, designers, that is, all those people who do not need personal contact with colleagues or clients.
Despite the fact that remote workers are not located in the organization’s office, they should be hired according to all the rules typical for hiring permanent employees working within the organization.
How to hire a remote worker
Remote work is currently guided by the requirements of the Labor Code of the Russian Federation; a separate article has been specially included in the code, which defines the rules for hiring such employees, the procedure for concluding an employment contract with them, as well as other requirements for remote work.
Chapter 49.1 of the Labor Code regulates the rules for hiring remote employees. This chapter also establishes the concept of telecommuting. Remote work is work that is carried out outside the territory of the employer’s organization.
Procedure for hiring remote employees:
- Collection necessary information from the employee in the form of documents - you need a passport, work book, education document, military registration documents, and other papers containing personal data about the employee. These documents can be submitted by mail or electronically scanned copies; if necessary, copies are certified by a notary.
- Drawing up an employment contract. An employment contract must be concluded with a remote worker; a feature of this contract is the indication of the address where the work will be performed, which is different from the location of the organization itself. In general, an employment contract must comply with the Labor Code of the Russian Federation and contain all the necessary obligations, rights and responsibilities of both parties. You can download a sample employment contract with a remote employee here. An employment contract can be signed electronically; for this, the employer sends the remote employee an electronic version of the employment contract, the employee reads it and, if he agrees, signs and sends the documents back to the employer in the same way. An employment contract can also be sent by mail; in this case, the original contract is sent in two copies, one of which the employee must send back to the employer with his personal signature.
- Preparation of employment orders. To issue an order to hire an employee to work remotely, only an employment contract signed by both parties is required. It is not necessary to require the employee to write a job application, labor legislation does not require this. The order in form T-1 indicates information about the employee, the position for which he is hired, and the start date of work. In the line to indicate the basis for preparing the document, details of the employment contract are written.
- Registration of a personal employee card. The order serves as the basis for issuing a personal card of form T 2 for the remote worker, and, if necessary, a personal file is drawn up, which includes all the documentation submitted by the employee about himself, as well as all statements, orders and other documents related to the employee’s work activities.
- Making an entry in the work book. In order to make a record of employment in the work book, the remote worker should send his work book by mail. The employer, on the basis of Order T 1, makes the appropriate entry and retains the work book until the termination of the employment contract. Upon dismissal, a record of dismissal is made in the work book, after which the book is sent to the resigned employee.
- Familiarization of the remote worker with the company’s internal documentation. Despite the fact that the employee works remotely, that is, is not within the organization, he must be familiarized with internal regulatory documents that relate to him. Familiarization takes place electronically, that is, the employer sends the employee documents with which he gets acquainted and in in the right place puts his signature as a sign of awareness.
Features of hiring remote workers
The employee can send personal documents to the employer electronically, having previously certified them by a notary. If necessary, you can also send the originals of these documents to the employer, using registered mail with return receipt requested.
The completed employment order must be handed over to the employee for an introductory signature; this can also be done remotely via electronic communication or by postal service.
It is not necessary to send a work book to the employer to make a record of employment; this is done only if the employee himself needs it. This is due to the fact that work activity is confirmed not only by the presence of an entry in the work book, but also by the concluded employment contract.
Remote workers have the right to all the guarantees provided by the labor code. In particular, he can count on payment sick leave, for the provision of annual paid leave, deduction of insurance contributions.
If there is no information about remote work in the work book, the main document confirming labor activity And seniority remote employee, there will be his copy of the employment contract.
Such rules are established by part 6 of article 312.2 of the Labor Code of the Russian Federation.
If an employee still wants a record of remote work to be included in his work book, he should:
- or bring your work book in person;
- or send the book to the employer by registered mail with notification.
Such rules are established by part 7 of article 312.2 of the Labor Code of the Russian Federation.
Current legislation does not require indicating the remote nature of employment in the employment record in the work book. Therefore, make an entry in general procedure(Clause 3.1 of the Instructions approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69).
As a general rule, if an employee gets a job for the first time, the employer is obliged to issue him an insurance pension certificate (Clause 3, Article 9 of Law No. 27-FZ of April 1, 1996).
However, when hiring a remote employee, the employment contract with whom is concluded by , a special procedure applies. Such an employee contacts the territorial office Pension Fund RF and receives a certificate independently (Part 4 of Article 312.2 of the Labor Code of the Russian Federation).
The employee transfers the received certificate to the employer in electronic form, as well as which he presented when applying for a job (Part 3 of Article 312.2 of the Labor Code of the Russian Federation).
Work and rest schedule
The remote employee sets the working hours and rest time at his own discretion. But if the nature of the work requires the employee to perform work on certain days or hours, then the specific work schedule should be fixed in the employment contract or an additional agreement to it. For example, in the contract you can write: “The employee’s working hours are from 8.00 to 17.00. The duration of the lunch break is 1 hour. The specific time of the lunch break is set at the discretion of the employee.” This conclusion follows from the totality of the provisions of Articles 72, 312.4 of the Labor Code of the Russian Federation.
Provide annual and other types of leave to remote employees according to general rules. In this case, the procedure for granting vacations (types, duration) is fixed in the employment contract (Article 312.4 of the Labor Code of the Russian Federation). For example, an entry in the contract may look like this: “The employee is provided with annual basic paid leave of 28 calendar days according to the vacation schedule.”
Electronic document exchange
If a remote employee needs to contact the employer with a statement, provide explanations, or transmit other information, he can do this in electronic form (for example, by e-mail), confirming his request with an electronic signature.
To exchange documents electronically, both the employee and the employer must have enhanced qualified electronic signature . Such signatures are drawn up in specialized certification centers .
Also, a remote employee may need copies of work-related documents. Unless the employee's application specifically states that documents can be provided electronically, the employer should send them by registered mail with acknowledgment. In any case, copies must be sent no later than three working days from the date of receipt of the request from the employee.
This procedure is provided for in Part 8 of Article 312.1 of the Labor Code of the Russian Federation.
Insurance payments
A remote employee has the right to receive all insurance payments on a general basis: sick leave benefit , maternity benefit etc. To receive them, the employee sends the employer the relevant original documents (certificates of incapacity for work, certificates) by registered mail with notification.
Such rules are established by parts 6-8 of Article 312.1 of the Labor Code of the Russian Federation.
Occupational Safety and Health
In order to ensure safe conditions and labor protection for remote employees, the employer is obliged to:
- investigate accidents and occupational diseases that occur with remote employees;
- comply with the instructions of the State Labor Inspectorate;
- pay premiums for insurance against accidents and occupational diseases for remote employees;
- introduce labor safety requirements when working with equipment and tools.
Comply with other obligations to ensure safe conditions and labor protection in relation to remote employees (for example, provide special clothing, train safe methods and methods of performing work, etc.) the employer is not obliged, unless otherwise provided by the employment contract.
This procedure follows from the provisions of Articles 212 and 312.3 of the Labor Code of the Russian Federation.
Dismissal of a remote employee
A remote employee can be fired by common grounds , like any other employee of the organization (Article 77 of the Labor Code of the Russian Federation). In addition, the employment contract with such an employee may provide for additional grounds for dismissal at the initiative of the employer, as in the case of home-based employees (Part 1 of Article 312.5 of the Labor Code of the Russian Federation).
If the document flow between an employee and an organization is carried out in , That dismissal order send it to the employee for review in electronic form and receive the document back from him, certified by an electronic signature. On the day of dismissal, send to the employee a copy of the specified order on paper by registered mail with notification. In addition, make the final payment with the employee and enter the necessary information in personal card.
This procedure follows from the totality of the provisions of Part 2 of Article 312.5 and Article 84.1 of the Labor Code of the Russian Federation.
If for a remote employee , then it must also be sent to the person on the day of dismissal by registered mail with notification. Before doing this, obtain the employee’s consent to send documents by mail.
If a person is personally present in the office on the day of dismissal, give the work book to the employee. This procedure follows from Article 84.1, Part 6 of Article 312.1 of the Labor Code of the Russian Federation.
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