Against of the spread of the COVID-19 virus, our state recommends that employers send employees to work remotely from home. At the moment, this is almost the only way to save your job and earn income.
What is remote work in accordance with the law, according to article 312.1 of the Labor Code of the Russian Federation, it is recognized that an employee works remotely if he performs official duties outside the stationary location of the employer's organization, for example, at home. Communication with the organization is carried out via the Internet, telephone, and other remote communication channels.
It is important to understand that working from home is not a transfer to another job, it is just a temporary (or permanent) change in the terms of the employment contract, as the employee continues working in the same position, in the same structural division and with the same employer. All its labor functions are preserved, only the workplace changes.
You must sign an additional agreement with the employee, if he is transferring to remote work.
It is recommended to include the following information about:
- new work format and deadlines;
- mode of work and rest;
- the amount of wages (if the amount of duties has not decreased, the wage should not be reduced, but by agreement of the employee with the employer paying remote work can be done on other terms);
- the procedure for exchanging working documents;
- the procedure for providing the employee with the means necessary to perform the labor function;
- the amount of compensation for the employee's expenses for using personal property for work purposes (payment for electricity, Internet, computer operation, etc.);
- the procedure for providing the employee with safe working conditions and labor protection;
- rules and forms of employer control over the employee during remote work, etc.
In addition, this decision must be issued by an internal order. In the order that concerns the transition to remote mode, you must specify the reason, term, employee data (full name, position, salary).
With regard to remuneration when transferring to remote work, it should be remembered that the reduction of wages by the employer, in accordance with article 74 of the Labour Code is possible only in cases where for reasons connected with change of organizational or technological working conditions (change in technology of production, structural reorganisation of manufacture, other reasons), certain parties to the terms of the employment contract cannot be saved.
Accordingly, it is not possible to reduce the amount of remuneration by the employer unilaterally by making changes to the staff schedule or to the local normative act that establishes the remuneration system in the organization, as these actions of the employer do not relate to changes in organizational or technological working conditions.
The Plenum of the Supreme Court explained that an employer who unilaterally changes certain parties to the terms of the employment contract, is obliged to prove that this decision, at first, was a consequence of the changes of organizational or technological working conditions (e.g. changes in technology of production, improvement jobs on the basis of their certification, structural reorganisation of production), and secondly, not worsen position the worker in comparison with conditions of the collective agreement (clause 21 of the resolution of 17.03.2004 N2 " About application by courts of the Russian Federation of the Labor code of the Russian Federation").
Taking into account the above, it is possible to refer to organizational changes, in particular, changes in the organization's management structure, changes in work and rest modes, the introduction, replacement and revision of labor standards, and to technological changes – the introduction of new production technologies, new equipment (machines, aggregates, mechanisms), improvement of workplaces, development of new types of products, technical regulations.
On the basis of the current judicial practice, the deterioration of the organization's financial situation and the reduction in the volume of work are not considered sufficient grounds for reducing the employee's remuneration (Cassation ruling of the Moscow city court of 25.12.2012 №4G/2-12138/12, Appeal ruling of the Arkhangelsk regional court of 04.02.2013 in case № 33-0671/2013). However, the reallocation of the load (without changing the labor function) to specific positions, caused, in particular, by a decrease in the volume of work as a result of organizational changes in the organization's management structure, can lead to a decrease in wages. At the same time, according to article 56 of the Civil procedure code of the Russian Federation, the burden of proving the existence of such reasons in a court session is placed on the employer as the party that refers to them.
The relocation of staff to remote work must be in strict accordance with the Labour Code and the official recommendations of the Fes, which states that citizens should avoid visiting places of a mass congestion of people, therefore the employer has no choice but to organize the transition to remote work of his team.
In addition, it is important to note situations when it is impossible to transfer to remote work.
1. According to experts of the Ministry of Labor, the organization is not entitled to conclude employment contracts with remote workers who work outside of the Russian Federation. This rule applies both to foreign citizens or stateless persons, and to citizens of the Russian Federation. For more information, see the Department's letter № 14-2/OOG-245 dated 16.01.17
Officials refer to the provisions of article 312.3 of the Labor Code of the Russian Federation. It obliges the employer to provide safe working conditions and labor protection for remote employees. At the same time, article 13 of the Labor Code of the Russian Federation states that the labor legislation of the Russian Federation applies only on its territory.
It follows from the above that the employer cannot provide safe working conditions for remote employees working outside the Russian Federation. Therefore, employers do not have the right to enter into labor contracts for remote work outside the Russian Federation with either foreign citizens (stateless persons) or citizens of the Russian Federation.
2. Also, the transfer to remote work is not possible in the case of a foreign citizen who has a work permit that does not specify the subject where the foreign citizen is actually located and performs remote work.
This requirement is based on mandatory conditions that must be reflected in the employment contract. Specify the place of employment is such a requirement.
If the employer violates the alert, he can be prosecuted under article 20.6 of the Administrative Code of the Russian Federation (a fine for officials in the amount from ten thousand to twenty thousand rubles; for legal entities — from one hundred thousand to two hundred thousand rubles).
For more information, please contact the consultants of the Confidence Group company.
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