Remote workers usually incur certain costs associated with the performance of their work duties. Including - and in connection with the use of personal property for these purposes. Can an employer reimburse an employee for such expenses? What problems arise in this case? If we turn to articles 188 and 310 of the Labor Code of the Russian Federation, then we can conclude that the parties employment contract have the full right to independently determine the procedure for reimbursement of such expenses of the employee. Moreover, the amount of compensation must correspond to the degree of depreciation of the property owned by the employee. The Government of the Russian Federation in its own way makes one exception to this rule: this is the depreciation of an employee's car. If the parties to the employment contract decide to fix in this document other grounds for reimbursement of the employee’s expenses, then in accordance with the letters and the Ministry of Finance of Russia dated 11.04.13 No. attention!) with differentiation of the degree of wear and tear for the use of property for labor and personal purposes. Thus, the tax authorities get certain opportunities to challenge such compensations. Those expenses of an employee that are difficult to differentiate according to their goals can become controversial: to separate depreciation as a result of using property for personal needs from depreciation when the owner performs his own professional duties. For example, any employee can use Internet access both for personal purposes and for professional activity. And the proportion of its use for certain needs can be difficult to establish and, accordingly, questions arise regarding the payment of such expenses.

"Remoteness" and "isolation" - is it the same thing?

For tax purposes, it may matter where the employee works, can the place where he performs his labor duties be considered a separate division of the enterprise? As a general rule, remote workplace cannot be considered a structural unit. fixes the requirements that apply to a stationary workplace. When remote work there is no fixed location. And if there is no workplace, then, therefore, there is no separate place of work. The same, but in other words, is also stated in clause 2 of article 11 of the Tax Code of the Russian Federation. It says that the activities of the organization should be carried out in a separate unit. The work of an individual homeworker does not meet this definition. But there is one exception that follows from the letters of the Ministry of Finance of Russia (dated May 23, 2013 No. 03-02-07/1/18299 and dated March 18, 13 No. 03-02-07/1/8192), and is confirmed by judicial practice: the location of the implementation labor activity on remote access (homework work) may in some cases be recognized as a separate division of the organization if the employer creates stationary jobs for such workers for a period of at least a month.

Homeworker in the office - is it a business trip?

An employee who performs his duties remotely visited the office of his employer in connection with the performance of his labor function. Is it possible to say that he is on a business trip and, accordingly, pay him travel expenses? The Ministry of Finance of Russia repeatedly (see letters dated 08/01/13 No. 03-03-06/1/30978, 08/08/13 No. 03-03-06/1/31945, dated 04.14.14 No. 03-03-06/1/ 16788) gave a legal interpretation of articles,, and 312.1 of the Labor Code of the Russian Federation. These documents explicitly state that all guarantees of labor legislation, including those related to the employee's stay on a business trip, including reimbursement of expenses incurred by him in connection with the trip, such as travel and accommodation, as well as daily allowances, also apply to those who fulfills his labor function remotely, remotely, with a home-based method of fulfilling the duties enshrined in the employment contract. At the same time, there is a conflict of labor legislation that arises when interpreting the provisions of Art. 209 of the Labor Code of the Russian Federation. The tax authorities sometimes consider that, since the workplace of a homeworker may be considered the place of his residence (and for those who work remotely, the place of work may not appear in the employment contract at all), that the payment of expenses in connection with the trip to the head office and living in foreign locality can be made in accordance with the provisions of Article 188 of the Labor Code, but not as payment for the expenses of a seconded employee. In cases where the place remote work and the location of the head office coincide within the same locality - this point of view is likely to be supported in a controversial case by the court.

How to correctly account for the results of remote work as expenses in the form of a salary

There are two polar points of view on this matter, since there is a certain competition between the norms of labor and tax legislation. Let us designate both positions that can become the basis for resolving disputes in court. One of key principles labor law is a ban on discrimination certain categories workers. That is, remote employees of the organization cannot be required to do what is prohibited in relation to office workers. And the features of the working conditions of workers "at a distance" are enshrined in the Labor Code of the Russian Federation. Going beyond these limits will mean discrimination.

Article 312 of the Labor Code of the Russian Federation. General provisions(extract) Remote work is the performance of a labor function determined 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 it is used to perform this labor function and to interact between the employer and the employee on issues related to its implementation, information - telecommunication networks common use, including the Internet. Remote workers are persons who have concluded an employment contract for remote work. Remote workers are subject to labor legislation and other acts containing norms labor law, taking into account the specifics established by this Chapter. In the event that this chapter provides for the interaction of a remote worker or a person applying for remote work and an employer through the exchange electronic documents, enhanced qualified electronic signatures of a remote worker or a person applying for remote work and an employer are used in the manner prescribed by federal laws and other regulatory legal acts Russian Federation. Each of the parties to the specified exchange is obliged to send in the form of an electronic document confirmation of receipt of an electronic document from the other party within the period specified by the employment contract on remote work.

The general rule states that the confirmation of the expenses incurred by the employer for the remuneration of employees are the relevant provisions of employment contracts and job descriptions. Consequently - no additional reports, other evidence of the employee's performance of his labor duties. There is also judicial practice on this matter (see, for example, the decision of the Federal Arbitration Court of the North-Western District dated April 17, 2013 No. A13-6626 / 2012). At the same time, clause 1 of Article 252 of the Tax Code of the Russian Federation states that expenses (including those for paying salaries) need to be documented. In relation to office workers, such confirmation is personnel records, including how much time the person actually worked. And established in Art. 312.4 of the Labor Code of the Russian Federation, the right to independently determine the working hours for those who work remotely does not at all cancel the employer's obligations to record the hours actually worked. Since there is no relevant data for "remote workers" - please, provide other evidence. No discrimination, but only a forced reflection of the specifics of this variety labor relations. One of the ways to solve this problem is to fix the methods of accounting for hours worked directly in the employment contract. As such methods, you can use printouts of control telephone conversations. This is not a troublesome business, but it will help save the employer from unnecessary disputes with the tax authorities in the future.

THIS ARTICLE IS A CHAPTER OF THE AVAR BOOK LABOR LAW OF RUSSIA

The new law introduces major changes to Russian labor law. Now there is a legal opportunity to organize remote work of an employee at his home. Previously, the Labor Code provided for the so-called “work from home”, but the conditions for its application were very limited and in fact could not be applied in a situation where an employee was hired to work remotely at home or in another place remote from the office. The old rules on home work, which are still in force, regulate the situation in which a worker performs duties related to the production of consumer and craft goods from materials and using tools of the employer or purchased at the expense of the worker. Thus, these rules could not be applied to regulate the labor of various categories of workers. In Russia, there was an urgent need to regulate the remote work of such categories of workers as IT specialists, sales representatives, consultants, translators, etc. The changes provide an opportunity to legally consolidate relationships with such employees.

According to the new law, remote work is the performance of labor duties outside the location of the employer, its branch, representative office or other place under the control of the employer. The new law indicates the need to organize communication through the use of information and telecommunication networks, including the Internet, to perform work and interact with the employer. An important provision of the new law is the provision that the presence of a remote worker does not entail the obligation of the employer to register a separate structural unit for these purposes.

Teleworking regulations provide opportunities for more flexible work regulation. For example, they allow for special conditions termination of the employment contract.

Below, we will describe in more detail the innovations in remote work and briefly name the similar modes of work at home and shift work, as well as the ability to conclude civil law contracts instead of employment contracts.

remote work

The President of the Russian Federation signed the Federal Law on Amendments to the Labor Code, introducing new chapter about remote work. It entered into force on April 8, 2013.

Remote work is understood as the performance of labor duties outside the location of the employer, its branch, representative office or other place under the control of the employer.

A necessary condition for remote work is the use of information and telecommunication networks, including the Internet, to perform work and interact with the employer.

An important point of the new law is the provision that the presence of a remote worker does not entail the obligation of the employer to register a separate structural unit for these purposes. This conclusion can be drawn from the legal provision that a separate structural unit must be registered with the tax authorities if the employer organizes stationary jobs far from its location geographic area(Articles 81.1 and 11.2 of the Tax Code of the Russian Federation) at a time when a stationary workplace is not organized for a remote worker. The regulation of the work of remote workers has some peculiarities. Enhanced qualified electronic signatures are used in the interaction between a remote worker or candidate for remote work and an employer when exchanging electronic documents. However, this provision becomes binding only by agreement of the parties. If such an agreement has not been reached, the parties may use the paper form of documents (Article 312.1 of the Labor Code of the Russian Federation).

At the conclusion of the contract, the condition for remote work must be included in the employment contract with the employee. The contract may provide for an additional condition on the obligation of the remote worker to use equipment, software and hardware, information security tools and other means provided or recommended by the employer in the performance of his duties.

The employment contract must provide for the following conditions:

Procedures and conditions for the use of equipment, software and technical means, means of information security and other means provided or recommended by the employer;

Procedures and conditions for reporting on the work performed;

Conditions for compensation for the use of equipment, software and hardware, information security tools and other means belonging to the employee;

Rules for compensation of other costs that an employee incurs in connection with the performance of remote work.

The employer's obligations to ensure safe conditions and labor protection for remote workers are limited. Unless otherwise provided by the employment contract on remote work, the mode of working time and rest time of the remote worker is established by him at his own discretion.

An employment contract and agreements on changing the terms of an employment contract may be concluded by exchanging electronic documents. In this case, the location of the employer is indicated as the place of conclusion of the employment contract on remote work, agreements on changing the terms of the employment contract on remote work. The employer no later than three calendar days from the date of conclusion of the employment contract is obliged to send to the remote worker by mail by registered mail with notification, a duly executed copy of this employment contract on paper. Sending documents presented at the conclusion of an employment contract in accordance with Art. 65 of the Labor Code of the Russian Federation is carried out by sending copies of them in electronic documents. However, at the request of the employer, the applicant is obliged to send him by registered mail with notification notarized copies of these documents on paper.

Familiarization of an employee with documents related to work, including local regulations and orders of the employer provided for by the Labor Code of the Russian Federation, can occur through the exchange of electronic documents. In addition, in cases where, in accordance with the Labor Code of the Russian Federation, an employee has the right or obligation to apply to the employer with a statement, provide the employer with explanations or other information, the remote worker can do this in the form of an electronic document. By agreement of the parties, information about remote work in work book are not paid, and a work book is not issued to a person who first got a job.

The parties also have the right to conclude an employment contract on remote work without the use of electronic documents in the traditional manner. In this case, the contract indicates the place of actual conclusion of the contract. The applicant submits the original documents presented at the conclusion of the employment contract. In addition, in this case, the employer retains the obligation to issue a certificate of state pension insurance for a remote worker who is getting a job for the first time. The employee also has the right to demand the proper execution of the work book.

Remote work in some cases requires the proper execution of written documents, which are sent by registered mail with notification. The employer, even in the case of concluding an employment contract through the exchange of electronic documents, is obliged to send to the remote worker a duly executed copy of this employment contract on paper. To provide compulsory insurance coverage for compulsory social insurance in case of temporary disability and in connection with motherhood, a remote worker sends the originals to the employer required documents.

Upon termination of the employment contract, even if familiarization with the dismissal order is provided in the form of an electronic document, the employer on the day of termination of this employment contract is obliged to send a duly executed copy to the remote worker said order on paper. In other cases, use paper media is optional.

The parties may provide in the employment contract for remote work (as well as when working at home) special conditions for terminating the employment contract, not limited to the relevant list of the Labor Code of the Russian Federation.

Home work In addition to new provisions on remote work, the Labor Code contains rules on the so-called “home work” (Chapter 49 of the Labor Code of the Russian Federation). However, the conditions for its application are quite limited and in fact cannot be applied in a situation where an employee is hired to work remotely at home or in another place remote from the office. The Home Work Rules, which are still in force, govern the situation in which a worker performs duties related to the production of consumer and craft goods from materials and using tools of the employer or purchased at the expense of the worker. Thus, these rules could not be applied to regulate the labor of various categories of workers.

Home work is regulated general rules; however, there are some peculiarities. A homeworker can involve members of his family in the work, but no labor relations arise between them and the “employer” (Article 310 of the Labor Code of the Russian Federation).

In an employment contract for the performance of work at home, the employer and employee agree on which of the parties provides the equipment and materials necessary for work. If the homeworker uses his own materials or equipment, the employer must pay compensation for their wear and tear.

An employment contract for home-based work must contain the procedure for paying the homeworker for the work performed.

When working at home, you must follow the rules of safety and health protection.

The norms of the legislation on home work provide for the need to specifically establish in the contract the grounds for its termination (Article 312 of the Labor Code of the Russian Federation).

Work on a rotational basis

Work on a rotational basis is a form of implementation of the labor process, when workers are at a considerable distance from their place of work. permanent residence and due to geographical conditions, their daily return to their place of residence cannot be ensured (Chapter 47 of the Labor Code of the Russian Federation). This form of labor is used in cases where work is carried out in sparsely populated areas with difficult natural conditions. Shift workers must return home at least once a month, and in exceptional cases - once every three months (Article 299 of the Labor Code of the Russian Federation).

With this form of labor, working hours, days, rest periods, etc. are taken into account in a special order, which is called the summarized accounting of working hours (Article 300 of the Labor Code of the Russian Federation). When working on a rotational basis, all the time spent at a remote workplace is taken into account. Anyway, total duration working hours should not exceed the normal number of working hours.

Civil law regulation of labor

An individual in Russia can provide services and perform work both under an employment contract, in which case relations with the employer are regulated by labor law, and under a civil law contract in accordance with civil law.

The concept of a civil law contract is reduced to an agreement under which a company uses the services of an individual without the intention of concluding an employment contract with him. The main difference between a civil law contract and an employment contract is that the employee is not entitled to use the guarantees provided for by labor law (protection against unilateral withdrawal from the contract, rules on working outside working hours, payment for sick leave and holidays), and is not subject to the rules of the internal work schedule customer.

Civil law contracts are used when a person is hired for temporary work on a project or from time to time performs additional work that is not normally performed by employees of the organization. One of the most typical cases is the conclusion of a civil law contract with freelance translators.

When concluding a civil law contract, the parties are guided by the norms civil law which provide for the equality of the parties and freedom of contract. However, certain restrictions are imposed by the imperative norms of chapters 37 and 39 of the Civil Code of the Russian Federation. In particular, the parties are obliged to agree on the specific subject of the contract, which must be spelled out in detail in such a contract, indicating its scope and quality. In addition, it is necessary to indicate the date of performance of work (for a contract for the provision of services for a fee) and the date of commencement and completion of work (for a work contract). A prerequisite is the determination of the price of the contract and the procedure for paying remuneration.

In most cases, the main reason for concluding a civil law contract is the desire of the parties to avoid the effect of labor law norms. However, in the event that a real labor relationship has developed between the parties, and the employee carries out labor activities in accordance with the labor schedule and on the territory of the employer, the employer bears the risk of the civil law contract being reclassified by the court into an employment contract in accordance with Art. 11 of the Labor Code of the Russian Federation. Currently, there is a voluminous jurisprudence on the application of this article. As a rule, if there is evidence of an employment relationship, the court resolves such cases in favor of the employee.

When reclassifying relations, the courts take into account a set of criteria, among which the following can be distinguished:

1) Systematic renegotiation of civil law contracts or extension of their validity, for example, in the Decree of the Federal Antimonopoly Service of the Moscow District dated August 28, 2008 N KA-A40 / 7019-08 in case N A40-59304 / 07-90-332.

2) Subordination of the employee to the internal labor regulations, for example, in the Decree of the FAS of the Moscow District dated 19.06.2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271 or the Decree of the FAS of the Moscow District of 13.11.2008 N КА-А40/10488-08 in case No. А40-59261/07-14-314.

3) Dates and frequency of payment of remuneration, for example, in the Decree of the Federal Antimonopoly Service of the Moscow District dated June 19, 2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271.

4) The relationship of payment under the contract with the volume and frequency of work performed, for example, in the Decree of the Federal Antimonopoly Service of the Moscow District dated 19.06.2009 N KA-A40 / 5330-09 in case N A40-66166 / 08-76-271.

Thus, despite the fact that civil law contracts are not the basis for the emergence of labor relations, in some cases they are able to regulate the performance of work by an individual who acts as an equal and independent participant contracts.

Civil law contracts can be concluded, among other things, with individual entrepreneurs. If such an entrepreneur provides services in accordance with his type of activity, the risk of re-qualifying the contract as an employment contract is significantly reduced.

Many companies have long been convinced of the real benefits of hiring remote workers, but literally until recently in Russia there was no legal basis for formal labor relations. How to properly apply for remote employees, what is important to take into account in employment contracts, how to avoid financial risks - says Tatyana Shirnina, legal expert at IPK.

In 2013, the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) was supplemented by chapter 49.1 “Peculiarities of regulating the work of remote workers”. These innovations were due, among other things, to high development information technologies. And in practice, the principle of remote work has been used for a long time, that's just legal regulation hasn't been for a long time.

Today, outside the location of the employer (at home, in another city / country, in a restaurant, on the beach, etc.), specialists with different skill levels work: engineers, lawyers, accountants, translators, journalists, editors, designers, programmers, auditors. Despite the fact that remote work is already a well-established phenomenon in Russia, there are no fewer questions. Let's try to answer some of them.

So, first of all, let's consider the main question:

How to formalize an employment relationship with a remote worker?

The main assistant for you will be the Labor Code, namely the above-mentioned chapter 49.1, which, by the way, provides for two options for concluding an employment contract:

1) an employment contract with a remote worker can be concluded by visiting the employer's office in person;

2) an employment contract with a remote worker can be concluded by exchanging electronic documents. This option can only be used if the parties have enhanced qualified electronic signatures.

When hiring a remote worker, the list of documents required to conclude an employment contract is no different from the general list provided for in Article 65 of the Labor Code of the Russian Federation. Just one caveat: if an employment contract for remote work is concluded by exchanging electronic documents with a person entering into an employment contract for the first time, this person receives an insurance certificate of compulsory pension insurance on his own.

The obligation of the employer to familiarize employees with the documents before signing the employment contract is also preserved. The method of acquaintance depends on how the interaction between the employee and the employer takes place: by exchanging electronic documents (here we remember the enhanced qualified electronic digital signature) or by visiting the employer's office directly.

Conditions of an employment contract with a remote worker

When drawing up an employment contract, it is necessary to be guided by article 57 of the Labor Code of the Russian Federation. But since this is a special type of labor activity, it is necessary to reflect in the text of the contract that the work is performed remotely.

In addition, there are other special conditions of the employment contract with this category of workers. One of the prerequisites is to indicate the place of work and there are no exceptions for remote workers in this part. However, how to specify it if we do not know in what place the employee will perform his labor function today and tomorrow?

Let's turn to article 312.1. TC RF:

“Remote work 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 stationary workplace, territory or facility, directly or indirectly under the control of the employer, with the condition of using for the performance of this labor function and for the interaction between the employer and the employee on issues related to its implementation, public information and telecommunication networks, including the Internet.

According to representatives of Rostrud (Letter of Rostrud dated 07.10.2013 No. PG / 8960-6-1 "On determining the place of work of a remote worker"), an employment contract for remote work should contain information about the place of work where the remote worker directly performs the duties assigned to him with an employment contract. Of course, the clarification of Rostrud is not equated with regulatory legal acts. However, the State Labor Inspectorate acts as its territorial body, therefore, the policy will be similar. That is, if the employment contract with a remote worker does not contain such a condition as “place of work”, the company may be held administratively liable under Part 3 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

So where to look for the answer? The letter of another federal executive body - the Ministry of Finance of Russia dated 08/01/2013 N 03-03-06 / 1 / 30978, which draws a conclusion from the definition of remote work given in Art. 312.1 of the Labor Code of the Russian Federation: for an employee permanent job is its location.

Perhaps we should agree with this opinion. After all, it is logical that the place of work of the "remote worker" is the place of his actual location at the time of the performance of the labor function.

Working conditions in the workplace

As you know, working conditions at the workplace are determined by the results of a special assessment of working conditions. But how can an employer describe these factors if the employee can move around the world every day?

In fact, the legislator has provided for exceptions in terms of the mandatory special assessment of working conditions for certain categories of workers. These include remote workers (Part 3, Article 3 of Federal Law No. 426-FZ of December 28, 2013 “On Special Assessment of Working Conditions”). Therefore, since there is no need to special assessment working conditions, the employer is automatically relieved of the obligation to prescribe in the employment contract with a remote worker such items as: “guarantees and compensation for work with harmful and (or) dangerous working conditions” and “working conditions at the workplace”.

Working mode

Here is another important question: how to build a work schedule with remote control? It all depends on how important the employer is to the time frame in which the employee will perform his labor function. This is also connected with the way in which the accounting of working time is set: the employer will keep it on his own or entrust the employee to mark work hours by self-taping.

As one of the options - to provide for remote employees the usual work mode adopted in the company. For example: “The employee is set a 40-hour five-day work week, with two days off. The employee is set working days from Monday to Friday, working hours from 9:00 to 18:00, a break for rest and food - 1 hour from 12:00 to 13:00, which work time not included and will not be charged. Saturday and Sunday are days off.

The second option (if it is not important in what period of time the work will be performed) is to set the employee, for example, a 40-hour five-day work week, with two days off. Specify which days are considered working days, which days off. With regard to the time of the beginning and end of the working day, as well as a break for rest and meals, state that they are set by the employee independently. IN this case you can write like this: “Duration of one working day: not less than 5 hours and not more than 9 hours per day. The duration of the break for rest and meals is 1 (one) hour, which is not included in working hours and is not paid.

Additional features

From the foregoing, we can conclude that it is necessary to fix the ways of interaction between the employee and the employer. In the employment contract, it is recommended to additionally prescribe means of communication ( mobile phone, e-mail, Skype, etc.) that will be used by the employee and the employer, and the time during which the employee must answer the call, incoming message / call back / write a message / get in touch.

Whatever mode of operation you specify in official documents, remember: a remote worker may be at a point with a different local time. Therefore, when determining the mode of operation, specify time zones. Otherwise, it may happen that when you get in touch with an employee at 8:00 Moscow time, you will not wait for him. After all, if he ends up, say, in New York, he will have a deep night - 00:00.

Don't Forget Vacation

Part 2 Art. 312.4 of the Labor Code of the Russian Federation obliges employers to prescribe the procedure for granting annual paid leave and other types of leave to a remote worker in an employment contract.

What else should be provided in the employment contract with the "remote worker"?

It is recommended to clearly state what equipment (software and hardware) the employee will use in the performance of his labor function, by whom it is provided, what actions the employee needs to perform and within what time frame it is necessary to inform the employer about a breakdown, technical malfunctions. If the employee will use his equipment (for example, a laptop, telephone, etc.), the employment contract should additionally regulate the procedure and terms for paying compensation for its use.

In order to track the quality and quantity of the work performed, you can additionally prescribe the procedure, terms and form for the employee to submit reports on the work performed.

Of course, as with any relatively convenient option, remote work has its pitfalls.

1) When accepting a remote worker in a company, interviews are often conducted via Skype or by e-mail. In this case, the employer bears the risk of incomplete and unreliable assessment business qualities specialist. Agree, at home, when there is a lot of reference material around (books, manuals, the Internet), it is much easier to pass an interview.

2) Since remote work implies the possibility electronic document management, including the signing of an employment contract, certain difficulties may arise. For example, the employer signed an employment contract and sent it to the employee, but he did not return the signed document and left all copies with him, or sent a scanned copy.

Unfortunately, due to simple carelessness in the event of a litigation, the terms of the employment contract may be recognized as inconsistent with all the ensuing consequences. Therefore, remember: the employment contract must be signed by both parties with an enhanced qualified electronic digital signature or a "live" signature on paper.

3) The question of control remains open, namely, how many hours a day a person works. That is, the interaction must be clearly regulated, otherwise the employer will never know how long the remote worker worked on a given day - 8 hours or only 2 hours.

4) When an employment contract is terminated at the initiative of an employee, the employer often receives a scan of his letter of resignation. However, based on the existing judicial practice, the courts do not recognize the scanned application as evidence, indicating that the employee’s will to dismiss must be expressed either in writing with the employee’s “live” signature, or signed with an enhanced qualified electronic digital signature.

5) From the point of view of the procedural code, it is not entirely clear from what point the employee has the right to apply to the court for the restoration of violated rights.

Here is an example from practice. The Moscow City Court in the Appeal ruling dated 01/20/2015 in case N 33-1146 / 2015 found that on May 21, 2014 the plaintiff received a dismissal order by e-mail, printed it out, put his signature on it and also sent this order by e-mail the defendant. Thus, the plaintiff received a copy of the dismissal order on May 21, 2014 and from that date he knew about his dismissal, and was not deprived of the opportunity to apply to the court with a claim for reinstatement at work before the expiration of one month. However, the plaintiff applied to the court on July 7, 2014, that is, he missed the one-month deadline.

Thus, in order to calculate the time limits for appealing against the actions of the employer, it is the employee's awareness of the violation of his rights that matters, including the receipt of an electronic copy of the order and the subsequent actions of the employee.

Of course, it is often convenient for both employees and employers to use the remote collaboration format, but please note that not all specialists can be hired remotely. For example, this applies to those whose result of labor is expressed in material products. This, by the way, is one of the differences between remote workers and homeworkers.

Another interesting question that arises in practice: Can all employees work remotely in small companies?

The legislation not only does not contain restrictions on the number of employees employed remotely, but also does not define a list of positions that cannot be occupied in this form. For example, if this is an online store, why not arrange remote work for everyone? There is only one condition: the nature of the duties performed must comply with the definition of remote work (Article 312.1 of the Labor Code of the Russian Federation), namely:

a) performance of a labor function outside the location of the employer;

b) performance of a labor function outside a stationary workplace, territory or facility directly or indirectly under the control of the employer;

c) the use of public information and telecommunication networks, including the Internet, to perform the labor function;

d) implementation of interaction between the employer and the employee on issues related to the performance of the labor function, public information and telecommunication networks, including the Internet.

That is, if we objectively consider the possibility of such an organization of labor, we must again take into account that not all categories of employees, as noted above, can work remotely. As a rule, "remote workers" are intellectual workers. Therefore, it is still quite difficult to imagine a company where only “remote workers” really work. Secondly, it is difficult to imagine how complicated the red tape with documents is, and what huge risks of losing them in the process of electronic exchange.

At the moment, there is no judicial or inspection practice on this issue, so what assessment the authorized bodies can give to such an organization of work can only be guessed at.

As rightly noted in the explanatory note to the draft law on amendments to the Labor Code of the Russian Federation in terms of regulating the work of remote workers, “ modern development economy is impossible without productive employment, which is a derivative of a well-functioning flexible labor market that allows you to quickly respond to economic challenges.”

Of course, remote work has many advantages, for example:

• reduction of the employer's costs for renting premises and organizing workplaces;
• saving time, energy and money for the employee due to the absence of transport problems - delivery to the workplace and back;
• growth of labor productivity during its organization in accordance with the desire of the employee in more comfortable conditions.

Remote work increases business activity and employment of the population, since people have the opportunity to work without leaving their homes or other convenient locations. The benefits for employers are obvious: to attract workers without the cost of equipping workplaces, and at the same time receive income from their productive activities.

Tatyana Shirnina, Leading Associate of the Labor Law Department

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

Remote and home work: differences, similarities, legal requirements

Today, more and more workers "go online" and start working remotely via the Internet. Web-designers, copywriters, managers, programmers, consultants and representatives of many other professions now have the opportunity to work from home and from anywhere in the world.

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

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

Characteristic/	remote work	home work
Concept definition	Teleworkers are individuals who have entered into a contract with an employer employment contract about remote work. Remote work is the performance by an employee of a function defined by an employment contract outside the location of the employer, its branch, representative office, other separate structural unit, outside a stationary workplace, territory or facility directly or indirectly under the control of the employer, provided that it is used to perform this labor function and implementation of interaction between the employee and the employer of information and telecommunication networks, including the Internet network (Article 312.1 of the Labor Code of the Russian Federation).	Home workers are persons who have entered into an employment contract for the performance of work at home. The work is performed from materials and using tools and mechanisms that the employer will allocate to the employee or that the employee will buy on his own at his own expense. (Article 310 of the Labor Code of the Russian Federation).
Activity	Remote workers, as a rule, are engaged in creative work or intellectual activity. Designers, journalists, copywriters, programmers, accountants, etc. can work remotely.	Home workers are engaged in the production of certain products at home, that is, handmade. For example, seamstresses, packers, pen assemblers, etc. can work at home.
Working mode	If the employment contract on remote work does not specify the specific time of work of the remote worker of the company, then he has the right to set the time and mode of work on his own. (Article 312.4 of the Labor Code of the Russian Federation). At the same time, the employer has the right to keep records of the time worked by a remote worker, and a time sheet can be kept based on the remote worker's report.	Home workers are not subject to the regime of work and rest established in the organization, and they have the right to perform their labor functions at any time convenient for them. That is, home-based workers set their own working hours. This is possible because wages depend on the volume of work performed, delivery on time finished products rather than the amount of time worked.
Place of work	Remote work is carried out outside the location of the employer, branch, department, representative office, separate subdivision, outside a fixed workplace, territory or facility that is under the control of the employer. That is, a remote worker can work from anywhere in the world, at home or on the street - it does not matter. The only condition for the implementation of remote work is the availability of the Internet.	Home work, as the name implies, is carried out at home.
Assessment of workplaces	The employer is not obliged to carry out certification of the workplaces of its remote employees. (Article 312.3 of the Labor Code of the Russian Federation)	The employer is obliged to certify the workplaces of home workers, because homeworkers are subject to labor legislation and other acts containing labor law norms. (Articles 310 and 212 of the Labor Code of the Russian Federation)
Providing workers with means of labor	remote worker, as a rule, independently provides himself with the necessary office equipment at his workplace. At the same time, the employment contract with a remote worker should reflect such aspects as: the procedure and terms for ensuring necessary equipment, software, information security tools (if an employee needs them to perform work). If necessary, labor tools and other equipment can be transferred by the employer to his remote worker on a rental basis.	Work is performed at home from materials using tools, mechanisms that were allocated by the employer or purchased by the homeworker at his own expense. Members of his family may participate in the work assigned to the homeworker. In this case, labor relations between the employer and family members of the home-based worker do not arise. An employment contract with a homeworker determines the provision of raw materials necessary for the implementation of work, materials, semi-finished products, as well as payment for manufactured products, reimbursement of funds spent by the homeworker on materials, as well as the procedure and terms for the export of finished products.
Equipment depreciation compensation	The amount, procedure and terms for payment of compensation for the use by remote workers of equipment belonging to them or rented, software and hardware, information security tools are determined by the employment contract on remote work. (Article 312.3 of the Labor Code of the Russian Federation)	In the event that a home-based employee of an organization uses his own mechanisms, devices, equipment and tools for work, the employer is obliged to pay him compensation for their wear and tear. (Article 310 of the Labor Code of the Russian Federation). An employment contract with a home-based worker must stipulate the procedure and terms for paying compensation, reimbursement of other expenses associated with the performance of work at home.
Labor protection of workers	In relation to its teleworkers, the employer is obliged to conduct an investigation and record of accidents at work and occupational diseases; comply with the instructions government agencies those exercising supervision in the sphere of labor; implement mandatory social insurance workers from accidents at work and occupational diseases; familiarize employees with labor protection requirements. (Article 312.3 of the Labor Code of the Russian Federation). Other obligations to ensure safe working conditions and labor protection apply to the employer only if they are prescribed in the employment contract for remote work.	The employer is obliged to ensure working conditions and labor protection in full for an employee doing work at home, in the same way as for any other employee of the organization. This requirement is provided for in Article 212 of the Labor Code of the Russian Federation "Obligations of the employer to ensure safe conditions and labor protection." It is also necessary to remember that the work assigned to home-based employees of the company cannot be contraindicated for them for health reasons, and all types of home-based work should be performed only in conditions that meet the requirements of labor protection (Article 311 of the Labor Code of the Russian Federation).
Document flow	Both paper and electronic document management can be carried out between the employer and the remote worker. In cases where, when hiring, a remote worker must be familiarized in writing against signature with the local regulations of the company, orders of the employer, orders, notifications, requirements, then the remote worker has the right to familiarize themselves with them through electronic document management, and also use them for signing the necessary documents with their enhanced qualified electronic signature. To get a job, a remote worker can send documents to the employer either in person or by e-mail. That is, an employment contract with a remote worker can be concluded via the Internet, and the employer must send a certified copy of it to his employee by registered mail with notification within three days (Article 312.2 of the Labor Code of the Russian Federation). All documents necessary for the employer to draw up an employment contract with a remote worker can be sent to him by registered mail with notification.	The employee delivers all the documents necessary for the employment of a home-based worker to the employer in person and in printed form. In the office of the organization, the home worker must familiarize himself with documents, regulations, official duties, collective agreement. An employment contract with a homeworker is concluded only in writing, and the nature of the work must be indicated in the contract itself - “Work at home”. When working at home, all documents between the employer and the employee are transferred on paper.
Entry in the work book	Information about remote work may not be entered in the employee's work book by agreement of the parties.	An entry about work in the work book of a home-based worker is made the same as for all other “Non-home-based” employees of the company. At the same time, there is no need to make any special explanations and clarifications that the employee will perform his duties at home.
Termination of the employment contract	The Labor Code allows the employer to terminate the employment contract with his remote worker at a distance, that is, his personal presence is not necessary. To do this, an order of dismissal must be sent to the employee's e-mail. After the remote worker certifies the order with his electronic signature, he must send the document back to his employer. A certified copy of the order must be sent to the remote worker by registered mail with notification (Article 312.5 of the Labor Code of the Russian Federation). Next, the employee must be made a full cash settlement. A remote worker may be dismissed on the general grounds provided for in Article 77 of the Labor Code of the Russian Federation, and on other special grounds provided for in his employment contract.	The grounds for terminating an employment contract with a homeworker must be provided for in his employment contract. (Article 312 of the Labor Code of the Russian Federation). In general, labor relations with a home worker, as with any other category of workers, may be terminated in accordance with the reasons provided for in Article 77 of the Labor Code of the Russian Federation. When terminating the employment contract, the personal presence of the employee is mandatory, as well as his personal signing of all documents. When dismissing a home-based worker, the employer must adhere to general order in accordance with the labor code of the country.

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

Important to remember!

Many employers ask themselves the question: is the place where a remote worker works, a separate structural unit of the organization? This issue is important primarily because in connection with the emergence of a separate structural unit, the employer has a new obligation to pay taxes and register such a unit with the tax authorities. In accordance with the Tax Code of the country, stationary jobs must be created at the location of a separate structural unit. The workplace is stationary if it is created for a period of more than one month. But is the remote worker's workplace a stationary one?

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

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

The concept of remote work

With the development of information technology, sometimes it is not necessary to be present at the workplace to perform any work. Already, on-line work is gaining ground, when employers and employees, using special technical means, maintain working contacts while being in different places.

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

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

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

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

Note that remote work can be carried out:

• at home (the workplace is equipped at home, the employee does not need to be present at the office);
• on business trips or at customer sites (for example, in construction companies when it is necessary to control the activities of construction teams, e-mail, ICQ, mobile communications are used);
• with the condition of mandatory 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 perform 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 territory of the employer, which is far from the place where the employer is based (for example, the employer is located in one city, and the employee performs work in another city).

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

Who can work remotely?

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

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

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

Today, remote work is performed mainly by:

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

Regulatory regulation

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

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

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

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

Advantages and disadvantages of remote work

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

Advantages	Flaws
Cost savings (rental pay, communal payments etc.)	Lack of assigned responsibilities and leverage on employees
Savings on office equipment service), stationery accessories	Impossibility of working with remote worker
Savings on taxes, deductions and social package	The inability to control employee's activities
Ability to pay less wages than an employee office worker	Lack of a fixed office negatively affects the image companies
Remote workers are less likely to be absent and go on sick leave	Work efficiency depends on from the professionalism of the remote employee, because he does not have opportunities to interact with colleagues and structural divisions

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

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

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

Features of registration of labor relations

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

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

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

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

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

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

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

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

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

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

Note. absenteeism - absence from the workplace without good reasons 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) (subparagraphs "a", paragraph 6, part 1, art. 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 paragraph 35 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2. Therefore, if it is important for the employer that the remote worker be in a specific place for some time, an order can be issued to determine the workplace. Accordingly, the employer will have a legal basis for the application of disciplinary measures.

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

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

Time tracking

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

legislator this question is also not regulated, therefore, we believe that the accounting of the working time of an employee working at a distance must be kept, relying on his conscientiousness.

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

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

Document management for remote work

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

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

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

Summarize

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

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

A.I. Suverneva

Journal Expert

"Salary:

Accounting

and taxation"