Today, remote work has become a fairly common type of work. In this article, we will take a closer look at how a remote worker should be hired by a company in 2018.

Telecommuting and teleworker

Working at a distance or teleworking involves an employee performing a labor function outside the employer’s location, namely, without a specific fixed location, outside the company’s office. This is the main difference between remote work and regular work, but otherwise there are practically no differences. The employee must also be accepted into the company's staff; he has the same rights as other employees, including deductions for insurance premiums.

In addition, a remote worker has the right to annual leave, for maternity leave with payment of appropriate benefits and for sick leave with payment of sick leave benefits.

Benefits of remote work

The main convenience of such work is that the employee independently chooses the place where he performs his work functions, which means he can work anywhere - in a cafe, at home, and even in transport. He does not have such an obligation as visiting the employer’s office every day. The employer also has advantages of such work. The main advantages are savings on office rent and funds for equipping an employee’s workplace, etc.

To organize personnel records in a company, beginner HR officers and accountants are perfectly suited to the author’s course by Olga Likina (accountant M.Video management) ⇓

The difference between a remote worker and a home worker

Not to be confused remote work from home work. A remote worker can be sent on a business trip, and a specific work schedule can be set for him and this can be stipulated in the employment contract.

A home worker is not subject to the organization’s work schedule. A “home worker” works at home, doing mostly simple work. The employer provides such workers with the necessary equipment or materials.

Unlike remote workers, homeworkers are required to submit documents to the HR department in person; remote workers can do this in person and by e-mail, or by registered mail.

You can conclude an agreement with him at a distance, but with a home worker this can only be done in person.

Important! A remote worker can obtain an electronic signature; to do this, you need to contact a certification center with a certain package of documents.

Having concluded an employment contract with a remote worker, a copy of it must be sent by registered mail with notification to the employee. This must be done within 3 days from the date of signing the contract, and the contract is sent only on paper.

How to hire a remote worker

To register as a remote worker, you will need to receive from him a package of the following documents:

• Employment history;
• Passport;
• Military registration document;
• SNILS;
• Diploma, certificate and other documents confirming the employee’s qualifications.

The employee can send the listed documents by e-mail, with each signature certified by an electronic signature.

Important! A remote worker may not present a work book. In this case, the employment contract should indicate that no entry about the employee’s hiring was made in the work book.

The procedure for registering a remote worker is no different from registering a regular employee and consists of the following steps:

• Familiarization of the employee with regulations companies;
• Conclusion employment contract;
• Issuing an employment order;
• Registration of a personal card for an employee;
• Making an entry in the work book.

The company's local regulatory acts include labor regulations, regulations on wages and bonuses, job descriptions, etc. The employee must be familiarized with them before concluding a contract with him, so copies of such documents are sent to the remote worker. The future employee must confirm the fact of familiarization with an electronic signature in the response letter. Only after this can an employment contract be drawn up with the employee.

Employment contract with a remote worker

One of the conditions specified in the contract is the place of work. The contract with a remote worker must indicate that the work is remote, and the employee’s home address can be indicated as the address. If the employee does not want to indicate his address, or it is impossible to indicate his address, then he can indicate the employer’s address as the place of conclusion of the contract.

Let's consider the main conditions that must be contained in the contract with a remote worker:

• Deadlines for completing the work, as well as preparing reports on the work done;
• Confirmation period for electronic or registered letters;
• The period of time when the employee remains in the access area via the specified communication channels;
• The procedure for document flow with the employer;
• Conditions for termination of the contract at the initiative of the employer.

When hiring an employee for a certain period of time, this should be recorded in the contract.

Important! You cannot enter into a contract for remote work with an employee living abroad!

Order on remote work

After concluding an employment contract, the employer issues an order for employment. The order can be issued using a unified form, or you can develop the form yourself. The remote worker contract is indicated as the basis, and the remote nature of the work is indicated as the condition of employment and the nature of the work.

Important! The remote worker should be familiarized with the order. To do this, the order is sent to him by email, to which the employee must respond with confirmation.

When an employee is not accepted for remote work, but is transferred, you need to use another form of order T-5. It is issued if changes in the nature of the work occur with the consent of both parties. In this case, you first need to draw up an additional agreement to the main contract with the employee, and then issue an order based on it.

Work book for a remote worker

The work book cannot be filled out electronically; it is transmitted to the employer in the original. If a remote worker wants an entry in the work book, he sends it to the employer by registered mail, or personally comes to the office.

Remote work in our country it is not as developed as, for example, in the USA or Europe. Entrepreneurs are still frightened by the prospect that they may never meet their employees. In our article we will figure out exactly how remote work can be organized so that it does not cause concern for the enterprise and questions for the inspection authorities.

Remote or remote work from home

What do we know about remote work? There are several types of remote work:

• home-based;
• remote;
• freelancing

Freelancing is work under a civil law contract. With this type of remote work everything is clear. The entrepreneur finds an employee (freelancer), gives him a specific task, sets deadlines and indicates all this in the GPC agreement. If the employee completes the work on time, the employer pays him a one-time remuneration specified in the contract. This type of employment does not imply any social guarantees.

But with homework and remote work things are different. The employee enters into an employment contract (EA), which gives him all social guarantees.

Features of remote work of a home worker

When working from home, the employee’s workplace is his home. Raw materials and tools for performing certain work are provided by the employer or the employee can purchase them independently. This is specified in the TD. Under such conditions, the contract specifies compensation for expenses incurred by the homeworker:

• for the purchase of materials, raw materials, tools;
• use of equipment (if it belongs to the employee and is not provided by the organization), the Internet, telephone;
• electricity costs and any other expenses, the reimbursement of which will be indicated in the TD.

A home worker can involve his family members in work (Chapter 49, Article 310 of the Labor Code of the Russian Federation).

We found out what working from home is. Let's figure out how to properly build labor relations with such employees?

Ch. 49 Labor Code The Russian Federation regulates labor relations between the employer and the homeworker. From Art. 311 of the Labor Code of the Russian Federation, it is clear that the main conditions under which work can be entrusted to a home worker are his state of health and compliance with labor protection requirements (Article 212 of the Labor Code of the Russian Federation). The majority of people working at home are producers of handicraft goods, seamstresses, and assemblers.

All relations between an enterprise and a home worker are regulated by the Labor Code of the Russian Federation and the Labor Code. Let's consider the main points of the contract.

After the conclusion of the TD, the enterprise issues an order to hire an employee. In the “Nature of work” column you need to write: “Work from home.” The employee must read the order and put his signature in the appropriate place.

The work book is filled out without any instructions about home work.

IMPORTANT! Despite the fact that the homeworker manages his own working time, the employer must fill out a time sheet. The rules on overtime payments do not apply to him.

How to fill out a time sheet correctly, read in articleatie .

Regulations on working conditions for homeworkers

Until recently, there was a provision on the working conditions of homeworkers, approved by Decree 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. 275/17-99, but it has lost force and is no longer valid on the basis of Order of the Ministry of Labor of Russia dated December 29, 2016 No. 848.

To avoid misunderstandings with the employee, it would be correct to draw up a job description or regulation on home work. There you can describe in detail the safety requirements, responsibility for non-compliance and other work rules. It is also possible to provide compensation and additional guarantees. In the TD, the employee must mark that he is familiar with the rules.

Remote work according to the Labor Code

Remote work By Labor Code of the Russian Federation can be considered the performance of certain functions specified in the TD, which occurs outside of a stationary workplace provided by the employer. To work and communicate with the employer, the employee must use information and telecommunication networks (ITS) common use(Article 312.1 of the Labor Code of the Russian Federation).

A remote worker is a person who has concluded a TD on remote work.

One of the differences between a remote worker and others is communication with the employer through the exchange of electronic documents and the use of enhanced electronic signatures (Law “On Electronic Signatures” dated April 6, 2011 No. 63-FZ). Each party, after receiving the electronic document, is required to send confirmation electronically.

What is an electronic signature, read in the articleatie .

The question arises: how to remote work conclude a contract agreement with a remote employee?

The contract is concluded, as is the document flow in general, using public information technology systems, incl. Email. After which the employer sends the remote worker a paper copy of the contract by mail within 3 days.

How to register an employee, working from abroad, read inarticle .

Since when remote work the employee has all the same rights as those performing his duties in the office of the enterprise; he must submit to the employer in electronic form the documents listed in Art. 65 Labor Code of the Russian Federation. If necessary, the employer has the right to require the employee to send him notarized copies of documents.

If the employee has not previously had a SNILS, he must obtain it himself and send a copy to the employer.

By mutual consent employment history not filled in. A document confirming work activity and length of service is a TD. In the absence of such an agreement, the employee sends the work book to the employer by mail (registered mail) (Article 312.2 of the Labor Code of the Russian Federation).

Let's take a closer look at some points.

Reflection of the remote worker’s place of work in the employment contract

Because remote work cannot be associated with the employer’s address; the employee’s home address is indicated in the contract as the place of work. But this does not mean that he should only work at home.

An employee may, for example, appear at the employer's office to submit completed work results or receive an assignment. It is possible for the employee to be present in the office for a limited time (specified in the contract). But if in fact the bulk of the work is performed outside the office, it is still considered remote.

Remote employment: work and rest schedule

According to Art. 312.4 of the Labor Code of the Russian Federation, a remote worker independently establishes the schedule of his employment and rest, unless otherwise specified in the employment contract. So it's order remote work must be determined at the time of signing the contract. These working conditions are typical for specialists in creative professions.

If the contract stipulates a free work schedule, i.e., regardless of the time of day and weekends, the employer is relieved of the obligation to keep track of working hours.

But if work time established in the contract (for example, from Tuesday to Saturday from 9:00 to 15:00 or any other time), the employer must keep track of working hours and make additional payments for overtime if they occur. Such conditions are typical for the work of dispatchers.

Safety

Most of the requirements for organizing labor protection and safety are related to remote work the employer is not obliged to comply.

When hired, a remote worker must be familiarized with the labor protection requirements when working with equipment provided or recommended by the enterprise (Article 312.3 of the Labor Code of the Russian Federation).

The enterprise also has the obligation to conduct a special assessment of jobs, but according to clause 3 of Art. 3 of the Law “On Special Assessment of Working Conditions” dated December 28, 2013 No. 426-FZ, a special assessment of workplaces is not carried out in relation to the working conditions of homeworkers and remote workers.

How often should occupational safety training be carried out?, read the articles:

If an employee, while performing labor responsibilities is injured or ill, the enterprise is obliged to organize an investigation, during which it will be determined whether this is an accident at work or not (Article 227 of the Labor Code of the Russian Federation, Article 3 of the Law “On compulsory social insurance against accidents at work and occupational diseases" dated July 24, 1998 No. 125-FZ). Only a commission has the right to conduct an investigation (Article 228 of the Labor Code of the Russian Federation).

Compensation

During runtime remote work the employee organizes his own labor process. If an employee uses his own or leased equipment, software technical means, information security tools and other means, the TD must indicate the procedure and timing for payment of compensation for its use. It is also necessary to provide and indicate the procedure for reimbursement of other possible expenses associated with the implementation remote work(Article 312.3 of the Labor Code of the Russian Federation).

We conclude that the employee and the employer can agree and establish in the TD the procedure for compensating the employee’s expenses. But in accordance with the letter of the Ministry of Finance of Russia dated April 11, 2013 No. 03-04-06/11996, documentary evidence of depreciation of property and other expenses for which the employee requires compensation is required. It should also be noted that if the property was used not only for official needs, it is necessary to divide the degree of wear and tear in accordance with the purposes of its use.

Pay for remote workers

So that the employer can safely take into account the payment remote work in your expenses, you need to establish in the TD methods of recording time worked. The fact that an employee can independently determine his own working hours does not cancel the employer’s obligation to take into account the actual time worked (Article 252 of the Tax Code of the Russian Federation, Article 312.4 of the Labor Code of the Russian Federation). If this is not possible, other evidence can be provided. For example, a register of completed works.

The payment itself, as a rule, occurs by bank transfer using the details specified in the contract. If the employee wants to change Bank details To make a transfer, you must draw up an additional agreement and indicate new card details.

In addition to transferring to the employee’s account (card), payment options are available by postal order, as well as from the company’s cash desk in cash, if the employee periodically appears at the employer’s office under the terms of the contract.

Termination of an agreement

The specifics of terminating TD are specified in Art. 312.5 Labor Code of the Russian Federation.

The grounds for its termination must be specified in the contract. The reasons may be the same as for office workers. For example, termination by agreement of the parties or on the initiative of the employee (Articles 77, 78, 80, 81, 83, 84 of the Labor Code of the Russian Federation).

You can also give specific reasons that will be characteristic of a particular remote work. This may be due to the number of defects or violation of deadlines for submitting reports on the work performed. By specifying all this in the contract, the employer will be able to protect itself from unscrupulous employees.

After the dismissal order is issued, it is sent to the employee on the day of dismissal via electronic communication channels, and a paper copy of it is sent by registered mail. The employee has the right to request copies of all documents related to his work activity (Article 62 of the Labor Code of the Russian Federation).

Results

Despite concerns, more and more modern employers are beginning to resort to the services of remote workers. This is largely due to the desire of the enterprise to save on the costs of organizing an employee’s workplace, compensation for travel to and from work, etc. Also, one should not forget that remote employees, as a rule, are paid less than their office colleagues, and this saves on salary costs and insurance premiums. The main thing when hiring an employee is remote work, correctly draw up an employment contract with him.

Interviewed by GK correspondent A.V. Khoroshavkina

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

Deputy Chief of Staff of the Committee State Duma by work, social policy and Veterans Affairs, K.Yu. n.

A new chapter has appeared in the Labor Code regulating the specifics of the work of remote workers in Ch. 49.1 Labor Code of the Russian Federation. One of the developers of the text of the Law talks about who they are and how remote work differs from other types of work, such as home-based work.

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

A.S. Leonov: Remote workers can be called “electronic” homeworkers. Both the character and the result of their work, and the way they communicate with the employer - all this is connected with information in electronic form. In many countries, to designate such labor activity The term “telework” is used. Moreover, in some places telework is considered as a type of home work, in others - as an independent phenomenon.

Domestic legislation took the second path and identified remote workers as a separate category.

A significant part of Ch. 49.1 is devoted to the electronic interaction of a remote worker with his employer. It is envisaged how an employment contract is concluded electronically and documents are exchanged. After all, a remote worker, unlike a homeworker, may never meet with his employer at all.

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

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

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

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

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

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

Is a job created during remote employment? In this case, does a separate division of the organization arise in the sense of tax legislation?

A.S. Leonov: When working remotely, we cannot talk about creating a stationary workplace and, accordingly, the emergence of a separate unit in principle.

A workplace is 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 part 6 art. 209 Labor Code of the Russian Federation. And the creation of a separate division is precisely the equipment of the workplace, the courts believe Resolution of the Federal Antimonopoly Service of the Northern Territory of October 15, 2007 No. A56-40913/2006. At the same time, remote work cannot be carried out in such places. Part 1 Art. 312.1 Labor Code of the Russian Federation, otherwise it is not remote work.

Therefore, the place where the remote worker performs work should not be specified in the employment contract. I think that an employer should not rent premises for work. Tax authorities may regard both as signs of the creation of a separate division.

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

The employment contract may stipulate that the employer compensates for the costs of the employee’s use of its equipment and software. You said that the employer can compensate the employee for expenses associated with the use of the premises. What about other property, such as furniture, vehicles?

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

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

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

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

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

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

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

A.S. Leonov: No, and in this case the employee will not be considered remote. And it will not be possible to draw up a contract for remote work.

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

If a remote worker is now registered as a homeworker, does it need to be re-registered?

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

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

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

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

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

Perhaps the employee already has an electronic signature and the employer agrees that he will use this signature rather than purchase a new one.

During remote employment, are workplace certifications and mandatory medical examinations of workers carried out? After all, such workers spend more than 50% of their working time at the computer.

WE TELL THE MANAGER

In relation to remote workers, the employer must not conduct neither workplace certification nor mandatory medical examinations, unless otherwise provided by employment contracts.

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

If an accident occurs to a teleworker while working, how can it be investigated in practice?

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

Of course, there may be difficulties in determining whether the accident involving a teleworker itself was industrial. For example, if a laptop exploded in an employee’s hands, it is necessary to establish whether he was carrying out the employer’s assignment at that moment.

It likely may make a difference whether the teleworker was working on their own equipment or on the employer's equipment. And if this is his own equipment, are the requirements for the equipment and its brand determined by the employment contract.

Is it necessary to specify the working hours of a remote worker in an employment contract?

A.S. Leonov: This is not necessary. But if it is important for the employer that the employee be online for a certain time and, for example, administer the site, it is advisable to establish the working hours in an employment contract. Modern software allows you to monitor whether the employee complies with the work schedule.

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

Are remote workers included in the vacation schedule?

Is study leave also provided to a remote worker as usual?

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

A.S. Leonov: These are likely some factors that may prevent a teleworker from performing his or her duties. But we must remember that such additional grounds should not worsen the situation of remote workers compared to other categories of workers.

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

A.S. Leonov: In my opinion, we need to focus on the minimum wage of the region in which the employee lives and works. After all, living conditions and price levels differ in different regions.

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

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

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

Should a remote worker complain to the labor inspectorate of which region - his own or his employer's - if his rights are violated?

A.S. Leonov: The Federal Labor Inspectorate is a unified centralized system. Therefore, I think that a remote worker may well contact the inspectorate at his place of residence. And you don’t even have to go there in person, just send an email.

Information about remote work may, at the employee’s request, not be included in the work book. What would you recommend: entering information about remote employment into the work book or not?

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

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

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

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

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

It is better to send documents by registered mail with a list of attachments.

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

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

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

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

How is the benefit paid if the employer is located in a region where a pilot project for paying benefits directly from the Social Insurance Fund is taking place, and the employee is in a region not participating in the project (or vice versa)?

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

If at the employer's location there are general rules, then he pays for this sick leave in the same way as other employees.

If the employer is located in the region where the pilot project is taking place, then he will have to transfer this sick leave to the Social Insurance Fund office along with the details of the employee’s bank account to which the payment is accrued. wage. Sick leave in this case, the Social Insurance Fund will be paid directly to the employee.

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

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

If the employee himself determines his work schedule, compensation for overtime work are not paid.

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. We will tell you in this article how to formalize an employment relationship with a remote worker, what insurance payments he is entitled to, and what the procedure for dismissal is.

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general information

There are the following methods of remote work:

1. Remote work.
2. 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).

Peculiarities 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.

1. Controlled by the employer.
2. 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 in mandatory 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 the general rules under Article 68 of the Labor Code of the Russian Federation.

The registration process includes the following points:

1. Drawing up an employment contract.
2. Issuing an employment order.
3. Establishing a personal card.
4. 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 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 for a special procedure for 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 benefits, etc.) according to general principles.

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:

1. Follow the instructions of the State Labor Inspectorate.
2. Pay premiums for insurance of remote workers against occupational diseases and accidents.
3. Investigate accidents that occur to an employee.
4. Investigate the employee's occupational diseases.
5. Familiarize workers with labor safety requirements when working with equipment.

The employer has no obligation to provide remote workers special clothing, training in safe work performance, unless this is specified 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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" № 12/2017

What is the essence of remote work? Who can work in this way? How do you apply for remote work? What are prerequisites employment contract? How documents are exchanged between an employee and an employer in different situations? On what grounds can you fire a remote worker? What entries and when are made in the work book of such an employee?

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

The essence of remote work.

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

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

outside a stationary workplace, territory or facility directly or indirectly under the control of the employer.

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

Remote workers are considered to be persons who have entered into a contract to work remotely. They are subject to labor legislation and other acts containing labor law norms, taking into account the features established by Chapter. 49.1 Labor Code of the Russian Federation.

For your information:

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

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

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

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

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

We are arranging for a remote appointment.

A remote worker is hired according to the general rules provided for in Art. 68 of the Labor Code of the Russian Federation, but in compliance with the requirements of Chapter. 49.1 of the Labor Code of the Russian Federation and Federal Law dated April 6, 2011 No. 63-FZ “On Electronic Signatures” (hereinafter referred to as Law No. 63-FZ).

Note:

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

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

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

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

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

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

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

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

For your information:

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

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

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

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

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

Employment contract.

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

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

At the same time, like any other employment contract, a contract for remote work must include the mandatory conditions specified in Art. 57 of the Labor Code of the Russian Federation, including:

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

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

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

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

Note:

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

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

on the procedure for making entries in the work book (Part 6 of Article 312.2);

• on the procedure and terms for providing the employee with the equipment and other technical means necessary to perform his job duties, as well as software in accordance with the requirements of the employer (part 8 of article 312.2). For example:

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

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

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

on the procedure for the employee to use information security tools in accordance with the employer’s recommendations (Part 8 of Article 312.2);

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

on the procedure and timing and form for the employee to submit reports on work performed (Part 1 of Article 312.3).

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

The nuances of remote work.

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

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

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

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

investigation and accounting as determined by the Labor Code, others federal laws and other regulatory legal acts Russian Federation procedure for industrial accidents and occupational diseases (paragraph 17, part 2);

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

mandatory social insurance workers from accidents at work and occupational diseases (paragraph 21, part 2).

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

Note:

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

Features upon dismissal.

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

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

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

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

Note:

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

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

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

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

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

		Information about hiring, transfer to another permanent job, qualifications, dismissal	Name, date and number of the document on the basis of which the entry was made
				Employment contract terminated	Order dated November 20, 2017
				at the initiative of the employer in connection with
				with repeated violation of deadlines
				delivery of verified materials,
				clause 6.3.1 of the Employment contract
				about remote work from 04/15/2016
				No. 15/16-td, part one of article 312.5
				Labor Code
				Russian Federation.
				OK specialist Petrova I.K. Petrova
				MP Ivanov

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

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