A significant part of the authors and readers of Habr either already works remotely, or, in principle, is considering the possibility of such work for themselves (by the way, it would be interesting to know these statistics).
The legal basis for remote work of IT specialists can be :
- Civil law contract (GPC), namely, a work contract or a service contract. The parties to such an agreement are "customer" and "contractor" (or "customer" and "executor").
- An employment contract, i.e. an agreement concluded with an employee employed by the organization. The parties to such an agreement are "employer" and "employee".
And it is about the features of the regulation of the labor of teleworkers that will be discussed in this post. In other words, I will try to explain what you should pay special attention to when concluding an employment contract for teleworking.
Remote work in terms of legislation
First of all, let's find out what the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) understands by “teleworking”.
According to Article 312.1, “remote (remote) work (hereinafter referred to as remote work, performance of a labor function remotely) is the performance of a labor function specified by an employment contract outside the location of the employer, its branch, representative office, or other separate structural unit (including those located in another locality), outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer, provided that information and telecommunication networks, including networks, are used to perform this job function and to interact between the employer and the employee on issues related to its implementation "Internet" and public communication networks ".
Consequently, an employment contract for teleworking is concluded with an employee who will work outside the employer's location (i.e. any of his offices, including those located in another locality) and outside a stationary workplace, territory or facility, directly or indirectly. under the control of the employer.
This means that a remote worker does not have a specific physical workplace, but only a virtual one, i.e. his workplace is the Internet, and he can perform his job duties anywhere (at home, in the country, in a cafe or on the beach), as long as he has constant access to the Internet and to public communication networks (i.e. e. to mobile telephony).
It turns out that telecommuting is work using the Internet.
Features of the conclusion of an employment contract providing for the employee to perform the labor function remotely
When applying for remote work, the employer has the right to demand (and the IT specialist must present) the following documents (the remote nature of the work does not affect the set of documents) :
1) passport (or other identity document );
2) a work book (except in cases where an employment contract is concluded for the first time or a citizen goes to work on a part-time basis).
Explanation: starting in 2021, the employer does not issue paper work books for employees who are hired for the first time, and stops keeping them for those employees who have submitted an application for the formation and maintenance of information about employment in electronic form. The specified information is provided by the employee during employment. This information can be obtained from the employer at the last place of work, through the Unified Portal of Public Services and Functions (EPGU), in the Pension Fund, as well as in some MFCs. Employees who have kept paper work books have the right to refuse them at any time.
3) a document confirming registration in the individual (personified) accounting system, including in the form of an electronic document;
4) military registration documents - for persons liable for military service and persons subject to conscription;
5) a document on education and (or) on qualifications or availability of special knowledge;
When concluding an employment contract, foreign citizens will need additional documents, namely :
- VHI agreement (policy), as well as a work permit or patent - for foreign citizens and stateless persons temporarily staying in the Russian Federation, with some exceptions;
- a temporary residence permit or a residence permit - respectively for foreign citizens temporarily or permanently residing in the Russian Federation, with some exceptions.
Keep in mind that the employer is prohibited from demanding documents from the person applying for work other than those provided for by the labor legislation of the Russian Federation. At the same time, the applicant can submit some additional documents on his own initiative:
- TIN assignment certificate;
- birth certificates of children (if a citizen plans to receive personal income tax deductions, use guarantees and compensations provided for employees with children);
- a certificate of the amount of earnings from the place of work with another employer (for calculating temporary disability benefits for the first three days of illness).
If an IT specialist lives in the same city, then it will not be difficult for him to personally bring all the documents necessary for employment to the HR department. If he lives in another area, then he can send the above documents to the employer in the form of electronic documents. At the request of the employer, a person applying for remote work is obliged to provide him with notarized copies of these documents on paper (you can transfer it either by courier or by mail).
An employment contract and a supplementary agreement to an employment contract providing for the employee to perform a job function remotely can be concluded by exchanging electronic documents between the employee (a person applying for a job) and the employer.
Upon a written application from a remote worker, the employer, no later than three working days from the date of receipt of such an application, is obliged to send the remote worker a duly executed copy of the employment contract on paper.
When concluding an employment contract by exchanging electronic documents by a person entering into an employment contract for the first time, this person receives a document confirming registration in the individual (personified) accounting system, including in the form of an electronic document, independently.
And here many people may have a question: “What is an“ electronic document ”?
Electronic document- a document created in electronic form without preliminary documentation on paper, signed with an electronic signature in the manner prescribed by the legislation of the Russian Federation. In other words, it is a document or electronic message signed with an electronic signature or enhanced electronic signature. That is, not just an email, but an email with an electronic signature.
Please note that when concluding labor contracts, additional agreements to labor contracts, an enhanced qualified electronic signature of the employer and an enhanced qualified electronic signature or an enhanced unqualified electronic signature of the employee are used.
To issue an enhanced qualified electronic signature, an employee needs to contact an accredited certification center and submit the required documents.
Familiarization of the employee with local regulations is also carried out either in writing (then against signature), or by exchanging electronic documents.
The Labor Code of the Russian Federation also provides that familiarization of employees with local acts can be carried out in a different form provided for by a collective agreement, a local regulatory act or an employment contract or an additional agreement to an employment contract. Anything can be hidden under the "other form" - a simple mailing by e-mail, laying out documents on the company's website or on some internal information resource.
Essential terms of a teleworking employment contract
When reviewing the teleworking employment contract sent to you for signature, please note whether it contains the following mandatory conditions:
- 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 an organization located in another locality - the place of work with an indication of the separate structural unit and its location;
- labor function (work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications; the specific type of work entrusted to the employee);
- indication of the remote nature of the work;
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- the procedure for interaction between the employer and the employee, including in connection with the performance of the labor function remotely, the transfer of work results and reports on the work performed at the request of the employer to the employer (this condition is not mandatory if it is specified in the collective agreement or local regulatory act);
- grounds for termination of the employment contract on the initiative of the employer.
Unless otherwise provided by a collective agreement, a local regulatory act, an employment contract, an additional agreement to an employment contract, the working hours of a remote worker are established by such an employee at his own discretion .
Additional grounds for terminating an employment contract with a teleworker
An employment contract with a remote worker can be terminated for any reason established by the Labor Code of the Russian Federation (with the exception of absenteeism, of course, because absenteeism means either absenteeism, i.e. absence from work without good reason during the whole working day, or being employee without good reason for more than four hours in a row during the working day outside the workplace, and the remote worker does not have a workplace).
But in relation to remote workers, the Labor Code of the Russian Federation provides for two additional grounds for dismissal at the initiative of the employer:
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In the event that the familiarization of a remote worker with the order (order) of the employer to terminate the employment contract providing for the performance of the labor function by this employee remotely on a permanent basis or temporarily is carried out in the form of an electronic document, the employer is obliged within three working days from the date of the issuance of the specified order ( orders) to send to the remote worker by registered mail with notification a duly executed copy of the said order (order) on paper.
At the same time, guarantees and compensations related to the termination of an employment contract on teleworking are provided to the employee in full in accordance with the norms of the Labor Code of the Russian Federation and other federal laws.
PSHope my post was helpful. If you have any questions about the labor legislation of the Russian Federation - ask them in the comments, and I will try to prepare a post with answers to them.