Those who do not have the standard means of remote work. Remote workers: what an accountant needs to know

It is becoming more and more popular with employers to hire employees who work remotely. This is a convenient form of relationship in cases where the characteristics labor activity allow you to work from a distance.

Registration of a remote employee - basic provisions

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

Recruitment remote employee must be executed in accordance with applicable legal regulations. Such workers are called freelancers or remote workers. Usually, a category of employees is invited to such work, whose duties are not associated with close contact with other specialists. Accountants, lawyers, designers, programmers and some other employees.

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

Since 2013, amendments to the Labor Code have made it possible to formalize a teleworker. The form of relationship in this case between the employer and the employee is an employment contract for teleworking. All requirements on this issue can be found in article 49.1 of the Labor Code of the Russian Federation.

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

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

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

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

Interesting fact! A final landmark example of expanding remote employment is the translation cellular operator"Beeline" a significant proportion of its employees to work outside the office. By the end of this year, the company can transfer to remote mode from 50 to 70% of its employees. At the Tinkoff company, a significant part of the employees are already working outside the office.

The conclusion of an employment contract under Article 49.1 of the Labor Law makes sense in case of long-term cooperation. In this case, the employer must do the following:

• Conclude an employment contract ().
• To acquaint the employee with the documentation for work.
• Issue all documents that will be needed to perform duties.

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

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

Persons working under a teleworking agreement are subject to all conditions and benefits as to other categories of employees. They are entitled to vacation, compensation for sick leave, maternity leave, etc.

For the dismissal of an employee, regardless of the form of work, there are general rules... The legislation protects the interests of the employee, dismissal is regulated by Article 81 of the Labor Code of the Russian Federation. The grounds for termination of employment are gross violations discipline, failure to fulfill obligations under the contract, disclosure of commercial or official secrets that became known during the performance of their duties, and more.

At the request of the employer, the reasons for dismissing the employee are reflected in closed list Clause 5, Part 1 of Art. 81.TC:

• Truancy without good reason(you will be interested :).
• Disciplinary action.
• The performance of work, the appearance of the employer in a state drunkenness, the use of narcotic or toxic drugs.
• Providing false information to the employer.
• Theft of money or other valuable assets.
• Loss of trust in the employee on the part of the employer.

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

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

For the dismissal of a remote employee, the reason for dismissal is the reason specified in labor agreement when applying for a job. The employer, before drawing up an employment contract for the hiring of a remote employee, must reasonably consider the reasons for dismissal (see).

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

Read about the benefits of using remote teams of employees and the correct management of personnel working remotely!

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

Telecommuting and home work: differences, similarities, legal requirements

Today everyone more workers“Go online” and start working remotely via the Internet. Web-designers, copywriters, managers, programmers, consultants and representatives of many other specialties have today the opportunity to work from the comfort of their homes and from anywhere in the world.

For employers, the registration of such employees "remotely" has a number of significant advantages. For example, there is no need to rent an office in order to keep a staff, buy office furniture, office equipment, pay public Utilities and pay tax contributions. Today, representatives of many professions can simply work remotely, but at the same time they are officially on the staff of the company.

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

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

Important to remember!

Many employers ask the question: is the place where the remote worker carries out his labor activity, a separate structural unit of the organization? This issue is important primarily because in connection with the emergence of a separate structural unit, the employer has new duty for the payment of taxes and registration with the tax authorities of such a unit. In accordance with the Tax Code of the country, stationary jobs should be created at the location of a separate structural unit. A workplace is stationary if it is created for a period of more than one month. But is workplace remote worker stationary?

Based on the definition given in Article 312.1 Labor Code country, teleworking has no signs of the work of a separate division of the organization, which means that the conclusion of a contract with an employee on remote work does not lead to the emergence of a separate division. Consequently, there is no need to register a remote worker as a separate structural unit of the company with the tax authorities.

There have been changes in the Labor Code. It now has a new chapter regulating the relationship between employers and teleworkers 1. What is the practical significance of such changes, as well as who can be classified as remote workers, read the article.

Currently, hundreds of thousands of people work outside the location of the employer's offices. More often, designers, programmers, translators, analysts engaged in online commerce and the like become teleworkers, which does not require the presence of the employer's office. Until recently, it was simply impossible to formalize such a relationship with an employment contract that would meet the realities of the existing relationship. As a result, such activities were formalized according to several options: as with a homeworker (which, most likely, did not correspond to reality, since home-based work involves the production of some kind of product), or such labor relations were “covered up” by civil law contracts, but it also happened, that labor relations were not formalized at all.
The risks of such "unformed" relationships fell on the shoulders of both parties, but the employee was in a less protected position. Agreements with the employer on wages and working conditions were not supported by a bilateral document, and, accordingly, the person was deprived of guarantees for the promised earnings, pension and social security. If the employer needed to represent his interests in another region, it was required to register a separate division of the company, and this meant the presence of rental costs, equipping the office with everything necessary, etc. financial expenses... Therefore, many companies shied away from registering such a legal presence and risked being "caught" tax office or Rostrud. At the same time, the conclusion of an employment contract with a homeworker also did not solve the problem, because the home of a remote worker could be recognized as a separate division of the company with all the ensuing consequences. In addition, in this situation, a conflict arose over the payment of personal income tax. The tax was legitimately claimed by the budgets of several subjects. Looking ahead, let's say that the employer's place of work is prescribed in the employment contract, respectively, personal income tax will go to the budget of the constituent entity of the Russian Federation where the employer is located.

New in the Labor Code
On April 8, 2013, Federal Law No. 60 FZ of April 5, 2013 came into force, aimed at “integrating” many teleworkers into the labor relations system. A separate chapter 49.1 appeared in the Labor Code, combining the features of employment of teleworkers.
In particular, Article 312.1 of the Labor Code defines what constitutes teleworking. Two essential features of such work can be distinguished: this is the performance of a labor function outside the location of the employer or its separate subdivision and the use of public information and telecommunication networks (Internet) for carrying out activities and interaction between the employer and the employee.
The same article defines general provisions about distance work. It has been established that teleworkers are persons who have entered into an employment contract for teleworking. Such employees are subject to labor legislation and other acts containing labor law norms.
Particular attention is drawn to a new for Russian law method of interaction between a remote employee and an employer - this is an exchange electronic documents... Moreover, the parties are required to use enhanced qualified electronic signatures 2.
The other four articles new chapter disclose the specifics of concluding an employment contract on remote work, performing such work, labor protection, working hours and termination of the contract.
The parties to an employment contract are given ample opportunities to define its terms. Below will be a few proofs of what has been said.
According to the new rules, an employment contract can be concluded both on paper and through the exchange of electronic documents. In the second case, the employer is obliged no later than three calendar days from the date of the conclusion of the electronic labor contract, send a paper copy of such an agreement to the remote worker by registered mail with notification. In this case, the location of the employer is indicated as the place of conclusion of the "distance" contract or agreements on changing its terms. In this case, there is no need to register a separate subdivision. This is another clear difference from the homeworker, whose address was mandatory in the employment contract.
The documents required for applying for a job 3 can be submitted by a remote worker in electronic form. In this case, the employer has the right to demand their notarized copies, which we advise to do, in view of the likelihood of forgery of this or that document.
Please note: when concluding an employment contract on teleworking by exchanging electronic documents, the person who first concludes such an agreement must independently obtain an insurance certificate of state pension insurance. Recall that, according to general rule 4, this certificate is drawn up by the employer.
Note that not only the signing of the employment contract itself, its annexes, but also familiarization with the employer's internal local acts can occur through the exchange of electronic documents.
As for the employee's provision of a work book and filling it out, there are the following options for action in this matter:

• employment history provided by the employee in person or by mail by registered mail with notification;
• the work book is not provided, and the record of remote work is not made in it.

And when concluding a "distance" contract for the first time, the work book may not start at all. As for the second option, it is possible only by agreement of the parties. The law does not establish in what form such an agreement should be reflected - in writing or orally. In our opinion, it is better to reflect it in the concluded employment contract. In this case, a written copy of the contract on remote work will be a confirmation of the employee's work experience.

Terms of employment contract for teleworking
One of the conditions of the "distance" contract may be the obligation of the employee to use the equipment, software, hardware and other means provided or recommended by the employer. By agreement of the parties, the procedure and terms for submission of reports on the work performed by remote employees are established. In addition, the parties independently determine the amount, procedure and timing of payment of compensation for the use of teleworkers of equipment owned or rented by them and other means, as well as the rules for reimbursement of other expenses related to remote activities.
Due to the specifics of telecommuting, an abbreviated list of labor protection requirements for telecommuting employees has been defined for the employer 5. So, from the general list of the employer's labor protection obligations 6 in relation to teleworkers, only three remain:

• provision of sanitary, household and medical and preventive services for employees in accordance with the requirements of labor protection, as well as the delivery of workers who fall ill at the workplace to medical organization in case of need to provide them with urgent medical care;
• compulsory social insurance of employees against industrial accidents and occupational diseases;
• familiarization of employees with labor protection requirements.

A special regime of working time and rest time has been established for a remote worker. The "remote worker" can distribute his work time and rest at your own discretion, unless, of course, the employer has any special wishes in this regard and unless otherwise provided by the employment contract 7. For example, the contract may specify that the employee must be online for eight hours a day on the Internet or perform certain work for four hours in a row during the day.
The procedure for granting a remote worker an annual paid leave and other types of leave is determined by an employment contract in accordance with the Labor Code. That is, with regard to vacations, the new chapter does not provide for any special features for remote employees.
As for the termination of an employment contract, the legislator has established the possibility of providing in the contract itself the grounds for its termination, in addition to those specified in the Labor Code. If the remote employee is electronically familiar with the order to terminate the employment contract, then the employer, on the day of termination of this contract, is obliged to send the employee a copy of the order in hard copy by registered mail with notification.
It should be noted that the dedication of a separate chapter to the regulation of the labor of teleworkers in Russian labor law occurred for the first time. At present, the practice of its application has not been formed, and it is too early to say whether it will solve the frequently arising questions. Nevertheless, this is a serious step towards regulating the labor relations of remote employees with certain specifics. The positive effect of the adoption of the new chapter is seen in the redistribution of labor forces and, in particular, in regions where there is a shortage of specialists in a particular industry. We believe that there is also a positive trend for small and medium-sized businesses. After all, small companies often cannot afford the necessary space, and by hiring remote workers, this problem can be solved. We must not forget about poorly protected groups of citizens, for example, people with disabilities, mothers caring for a small child. They get the opportunity to work officially, with the expectation of guarantees of Russian labor legislation. The new provisions of the law also remove the problem of transferring employees, if necessary, from one city to another, and, accordingly, the costs of such a transfer.

Remote work or, as it is called, work with remote access, is becoming more and more popular. There is no doubt that such a mode of work is convenient for both the employee and the employer. However, since telecommuting is not that long ago, employers make mistakes when establishing, regulating, or firing. Who can be assigned such a mode of operation? How to do it? How is the interaction between the employee and the employer carried out? What are the reasons for dismissing a teleworker? You will find answers to these and other questions in the article.

The essence of telecommuting

By virtue of Art. 312.1 of the Labor Code of the Russian Federation teleworking is the performance of a labor function defined by an employment contract:

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

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

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

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

Don't confuse telecommuting with home work. According to Art. 310 Labor Code of the Russian Federation homeworkers are persons who have entered into an employment contract for the performance of work at home from materials and using tools and mechanisms provided by the employer or purchased by the homeworker at their own expense. The result of home work is certain products, and the result of distance work is information, data, 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 apply for teleworking by mistake. For example, an employer has entered into a fixed-term employment contract for teleworking 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. Nevertheless, I would like to emphasize that in this case, an ordinary employment contract must be concluded, according to which the workplace is a structural unit located in another area, but at the same time controlled by the employer.

In addition, the Ministry of Labor has repeatedly (last time in Letter dated 16.01.2017 No. 14 ‑2 / OOG-245) expressed the opinion that labor legislation currently does not provide an 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 the conclusion of an employment contract on such conditions violates the Labor Code of the Russian Federation ... In particular, the employer will not be able to fulfill its obligations to provide remote workers with safe working conditions and its protection ( h. 2 tbsp. 312.3Labor Code of the Russian Federation) due to the fact that federal laws and other regulatory legal acts of the Russian Federation that form labor legislation are valid only on the territory of our country ( h. 1 tbsp. thirteenLabor Code of the Russian Federation). It is recommended to conclude civil contracts with such citizens.

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

We make out an admission to the "remote control"

A remote worker is hired according to the general rules provided for Art. 68Labor Code of the Russian Federation, but in compliance with the requirements ch. 49.1Labor Code of the Russian Federation and Federal Law of 06.04.2011 No. 63 -FZ "On electronic signature"(Further - Law no. 63 -FZ).

An employment contract for teleworking and agreements on changing the terms of this contract determined by the parties may be concluded by exchanging electronic documents ( h. 1 tbsp. 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 Law no. 63 ‑ FZ.

Despite the conclusion of an electronic labor contract, the legislation establishes the requirement for the availability of a paper form of the contract. The employer, within three calendar days from the date of the 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.

It follows from this provision that the employer sends a signed copy of the employment contract to the employee. For the employee, there is no obligation to send the second, personally signed copy to the employer by mail.

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

V article 312.2 of the Labor Code of the Russian Federation it was established that when concluding an employment contract on remote work by exchanging electronic documents, the documents provided for 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 these documents in hard copy.

If such a contract is entered into by a person for the first time, he / she receives an insurance certificate of compulsory pension insurance independently.

In addition, there are features in the design of the work book. In particular, by agreement of the parties to the employment contract on remote work, information about it may not be entered in the employee's work book, and when the labor contract is concluded for the first time, the work book may not be drawn up at all.

Thus, if no entries are made in the work book about the work of a remote worker, the main document on his work activity, confirming his seniority, for him will be an employment contract for remote work.

If the employee wants the record of his remote work to be entered in the work book, he must hand it over to the employer in person or send it by registered mail with notification.

Since the entry into the work book of an entry on the remote nature of work is not provided Instructionon filling out work books approved by Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 No. 69 , employment registration is made according to general rules.

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

On the basis of the employment contract, the employer issues an order for admission to remote work. It is drawn up in the same way as when accepting other employees of the organization. In this case, in the column "Conditions of employment, nature of work" indicate: "Distance work".

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

Labor contract

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

The employee performs his job outside the employer's location (remotely).

At the same time, like any other employment contract, a teleworking contract must include the mandatory conditions named 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 performance of work (address of residence, email address) should be indicated in the additional condition "Clarification of the place of work";

Working hours and rest hours, etc. The working mode can be set the same as for all employees of the organization, but it can be different;

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

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

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

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

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

On the procedure and timing of providing the employee with equipment, other technical means, and software necessary for the performance of his job duties, as well as software in accordance with the requirements of the employer ( h. 8 art. 312.2). For instance:

The employer undertakes to provide the employee with a computer, telephone, modem, technical documentation required for the employee to fulfill his job duties, on time ______________.

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

The employee independently provides himself with a computer, printer, fax, telephone connection, by means of access to the Internet.

On the procedure for the employee to use information protection means in accordance with the recommendations of the employer ( h. 8 art. 312.2);

On the procedure and terms for reimbursing the employee for expenses related to remote work, if, under the terms of the contract, he uses equipment and other software and hardware that belong to him or leased ( Art. 188,h. 1 tbsp. 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 with, etc .;

On the procedure and timing and form of submission by the employee of reports on the work performed ( h. 1 tbsp. 312.3).

In addition, you can indicate additional grounds for terminating the employment contract at the initiative of the employer ( h. 1 tbsp. 312.5 of the Labor Code of the Russian Federation).

Nuances of telecommuting

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

If an employee falls ill or is going on maternity or childcare 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 protection standards in relation to teleworkers.

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

Investigation and accounting in accordance with the Labor Code, other federal laws and other regulatory legal acts RF order of industrial accidents and occupational diseases ( par. 17 h. 2);

Compliance with prescriptions officials federal executive body authorized to implement federal state supervision observance of labor legislation and other acts containing labor law norms, other federal bodies executive branch state control(supervision) in the established field of activity, and consideration of the submissions of the authorities public control within the terms established by the Labor Code of the Russian Federation, other federal laws ( par. 20 h. 2);

compulsory social insurance of employees against industrial accidents and occupational diseases ( par. 21 h. 2).

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

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

Features upon dismissal

There are peculiarities in the dismissal of teleworkers, 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 dismissing a remote worker at the initiative of the employer ( h. 1 tbsp. 312.5Labor Code of the Russian Federation). For example, dismissal for repeated non-fulfillment of planned targets, for regular non-compliance with the format of the report on the completed task.

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

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

However, the court concluded that the job descriptions, taking into account their content, the procedure for adoption, the form, the timing of approval by the employer, the procedure for familiarizing the employee with them, cannot be qualified as an integral part of the labor contract concluded by the parties and do not meet the requirements Art. 56 of the Labor Code of the Russian Federation(are not an agreement of the parties), therefore dismissal according to the rules h. 1 tbsp. 312.5. Labor Code of the Russian Federation, which provides for the employer's right to dismiss a remote worker on additional grounds agreed by the parties, prescribed exclusively in the employment contract, is illegal ( The appeal ruling of the Sverdlovsk Regional Court dated 05/11/2017 in case No. 33 ‑7310/2017 ).

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

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

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

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

On the basis of the order, if the employee's work book was filled in, an entry is made in it about the dismissal. Here is a sample of an entry upon dismissal on an additional basis established by an employment contract.

We examined the features of telecommuting - in particular, regarding hiring, drawing up an employment contract, working hours and rest time, organizing labor protection and dismissal. Otherwise, teleworkers are subject to the general norms of the Labor Code, including the provision of vacations, accounting of working hours, depending on its regime, etc.

And of course, it is not necessary to hire new employees for remote work - you can transfer already working ones. But such a transfer is carried out only by agreement of the parties. It is possible unilaterally on the initiative of the employer only if there are good reasons.

"Remuneration: accounting and taxation", 2012, N 7

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

Remote labor concept

With development information technologies sometimes it is not necessary to be present at the workplace to do a job. Already now, on-line work is spreading, when employers and employees with the help of special technical means maintain working contacts from different places.

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

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

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

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

Note that remote work can be carried out:

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

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

Who can work remotely?

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

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

For work from home, typesetters, telephone dispatchers, assemblers of various products or parts may be accepted. Their activities do not have to be monitored: you just need to check the results of their work.

To date remote work perform mainly:

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

Regulatory regulation

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

<1>Approved by the Resolution of the USSR State Labor Committee, the All-Union Central Council of Trade Unions Secretariat dated 09.29.1981 N 275 / 17-99.

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

In 2011, the Russian Union of Industrialists and Entrepreneurs put forward the idea of ​​separately registering in the Labor Code provisions on the work of employees outside the territory of the employer. However, this idea was not developed, as the public's attention was riveted to more scandalous norms, such as an increase in the duration working week and other things, but in vain. for instance, currently a Moscow company, in order to remotely use the services of an employee in Nizhny Novgorod, which, say, represents an online store, must register there a separate structural unit - a branch or representative office. However, this is not always advisable, especially if this employee works from home via the Internet and has no other employees in Nizhny Novgorod. As a result of this, organizations often evade registration, respectively, there are risks of prosecution. state inspection labor or tax office.

Advantages and disadvantages of teleworking

Like any work schedule or work organization method, telecommuting has its pros and cons. For clarity, we present them in the table.

For workers, remote work also has positive and negative sides. For example, they like the lack of control from the authorities, the dress code. For some workers, teleworking is an opportunity to stop communicating with people they dislike. In addition, people working outside the office like the fact that they independently organize the work process and can simultaneously do household chores.

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

As you can see, there are advantages and disadvantages for both the employee and the employer. In any case, the employer decides on the use of remote work in the company.

Features of registration of labor relations

When using remote work, the employer may have some difficulties with determining the workplace, taking into account working hours, the possibility of attracting disciplinary responsibility.

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

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

If an employee is accepted for remote work in a separate structural unit located in another locality or in another locality, it is required to record in the employment contract that the place of work is the corresponding separate structural unit of the organization located at a specific address. for instance If OOO Romashka is located in Moscow, and the employee is accepted to the Nizhny Novgorod branch of OOO Romashka, you must indicate this and indicate the address of the branch in Nizhny Novgorod.

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

For your information. An indication in the employment contract of a settlement for the implementation of a labor function, which is different from the location of the organization, will help to resolve the issue with the vacancies available to him in this area, in the cases established by the Labor Code:

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

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

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

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

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

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

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

Following required condition labor contract - labor function(work according to the position in accordance with staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee). We believe that in the case of telecommuting, the employee's job function should be clearly defined. This can be done both in the employment contract and in job description so that the parties to the employment relationship have a clear understanding of the employee's responsibilities that the employer may require.

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

Time tracking

Working hours - the time during which the employee, in accordance with the internal labor regulations and the terms of the employment contract, must perform labor duties, as well as other periods that relate to working time. Article 91 of the Labor Code of the Russian Federation establishes the employer's obligation to record the time actually worked by each employee. For this purpose, the Resolution of the State Statistics Committee of Russia dated 01/05/2004 N 1 provides for unified forms T-12 "Timesheet of working hours and calculating wages" and T-13 "Timesheet of working hours". But how to take into account the working hours of an employee who works outside the office?

The legislator also does not regulate this issue, therefore, we believe that the accounting of the working time of an employee working remotely must be kept, relying on his conscientiousness.

Based on Art. 21 of the Labor Code of the Russian Federation, according to which the employee must conscientiously fulfill his labor duties and comply with the internal labor regulations, in the labor contract it is possible to consolidate the provision on the obligation to notify the employer about absence from the workplace (if it is determined by the employer) and prohibit working in excess of the established working time time.

It turns out that the timesheet will be filled in on the basis of data on the working hours of a particular employee, as well as on deviations from the norm and working hours. This approach is confirmed by the instructions for use. unified forms, in accordance with which the costs of working time are taken into account in the timesheet either by the method of complete registration of attendance and absenteeism for work, or by registering only deviations (absenteeism, late arrivals, overtime, etc.).

Document flow for remote work

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

Unfortunately, even with the existence Federal laws about electronic digital signature Labor legislation still does not provide for the possibility of drafting documents regulating labor relations (employment contract, orders, etc.) in electronic form and signing them with an analogue of a handwritten signature, for example, an electronic digital signature.

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

Summarize

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

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

A.I.Suverneva

Journal Expert

"Salary:

Accounting

and taxation "