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How to correctly transfer employees to a remote control? Legal Lifehacks

Coronovirus epidemic, self-isolation, transition to remote work - no panic. Remote work is now a necessary measure. But let's take this as a situation in which new solutions can be found. Perhaps even better solutions than you used before.

In this article, we analyze what the pros and cons of remote work are fraught with and how to switch to it correctly. Actual not only in connection with the upcoming Schrödinger week (it is not clear, in accordance with the Decree of the President, either non-working, or almost working), but also in the long term.



Decree of the Mayor of Moscow dated March 23, 2020 No. 26-UM added difficulties for employers to organize work under quasi-quarantine conditions. In addition to daily temperature measurements for employees, superiors are obliged to assist employees in ensuring compliance with the self-isolation regime at home (see paragraph 6.2).

What is the problem?


It is obvious that the transfer to the "home" mode will definitely affect the quality of work of employees. Remotely, it is more difficult for an employer to control work, as the quality of communication with an employee changes. This all leads to the fact that the accuracy of tasks is reduced, deadlines are broken, budgets are torn.



The legislator also understands this. Therefore, the Labor Code of the Russian Federation (hereinafter - the Labor Code of the Russian Federation) was supplemented in 2013 with a separate chapter 49.1 on remote work. This we wrote Habré 5 years ago. It's time to update the information for the current situation and remember what additional opportunities the employer has to control the employee.

Dismissal


It is difficult for an employer to fire an employee in an office environment - this can be done exclusively within the framework of Article 81 of the Labor Code of the Russian Federation . These reasons are not very attractive for the employer and are associated with additional costs:


?


When switching to remote work, the law allows for new grounds for dismissal in the employment contract that are not provided for in the Labor Code of the Russian Federation (lawyers call them unnamed grounds). For example, you can specify that the basis for dismissal will be:

  • repeatedly skipping daily online meetings at Zoom,
  • non-sending a report on tasks completed during the working day,
  • ignoring calls of the head during working hours, etc.

We do not set the task of presenting you a universal list of grounds, because only you can provide exactly those KPIs that are important to your business.


These grounds indicate the “remote absenteeism” of the employee, that is, absence from the workplace without good reason ( paragraphs “a”, paragraph 6 of article 81 of the Labor Code of the Russian Federation ).

When drawing up the terms of the contract with a remote employee, we propose to focus on:

  • a clear indication of the responsibilities, taking into account the possibilities to present a report on their implementation;
  • determining the grounds for dismissal related to the violation of such duties.

For example, to establish the boundaries of the working day and the obligation of the employee to record the time spent on tasks (start and end time) in software tools daily. For a single commission of such a disciplinary offense, the employer has the right to impose a disciplinary sanction (for example, a remark or reprimand). The fact of a disciplinary offense must be recorded by receiving a memorandum from an employee or drawing up an act of a violation ( Article 193 of the Labor Code of the Russian Federation ). If the violation is repeated, the employer has the right to dismiss the employee in accordance with paragraph 5 of paragraph 1 of article 81 of the Labor Code of the Russian Federation .

Pay attentionthat the employer's imagination should still be limited to common sense. When compiling a list of conditions unnamed in the Labor Code of the Russian Federation for disciplinary sanctions and dismissal of a remote employee, it is necessary to balance the interests of the employer and employee. You simply will not be able to conclude an agreement with a bias in the balance of interests, because obtaining the consent of an employee when concluding an agreement is mandatory.

Under quarantine - is it necessary to transfer all to remote work?


To date (March 2020) the transfer is not mandatory and is carried out only with the consent of the employee. Perhaps later there will be clarifications from government agencies, but so far they are not (we are following the development of the situation and will update the article as new information appears - keep it in your bookmarks). But this does not prevent the employer from playing a tricky two-way approach - now justify the employee the need to sign an agreement on remote work with reference to extraordinary circumstances, and take advantage of them even after the termination of such circumstances, without returning to the original conditions.

How to make a transfer to "distance"?


Such a transfer is made out by a special type of employment contract (or by an additional agreement to an already concluded labor contract) and contains more opportunities to control the fulfillment of labor duties and dismissal for their non-fulfillment ( article 312.5 of the Labor Code of the Russian Federation ).

What else are the benefits of telecommuting?


Of course, organizing the transfer of employees to remote mode is not only to protect themselves from the risks and additional costs associated with dismissal. Remote relations in the work team have many advantages that you might not have thought about before.

First of all, employers and employees have a real opportunity to provide in the agreement exactly the work schedule that will suit everyone - both “owls” and “larks”.

Moreover, in the time saved from traveling to the office and back, the employee can either get enough sleep, or spend time with his family (after all, the children of many workers have been quarantined for more than a week), or spend on performing a creative work task. This is a great opportunity to make an employee more cheerful, happier, and therefore more productive.

In addition, the transfer of employees to the "distance" will show them from a new perspective, their strengths and weaknesses. Having accepted such a “challenge”, no one will return to the office as before. Or he won’t return to the office at all. Or he won’t return to work at all (quit or be fired).

What consequences?


Certainly, the conclusion of distance labor contracts is not a solution to all quarantine problems of the employer. Moreover, distance work is not only a solid plus for the employer.

There are also disadvantages. For example, the agreement must provide for reasonable compensation to the employee for the use of materials and resources for completing tasks, for example, for working with a personal laptop ( article 312.3 of the Labor Code of the Russian Federation ).

Also note that if the employee’s labor function does not allow him to work from home and has no reason to go on sick leave, he can be offered a pay-as-you-go vacation if possible, or a simple one (by issuing an order on the simple and the amount of payment). Since the downtime is caused by a cause independent of the employer and employee, only at least 2/3 of the salary is payable (Article 157 of the Labor Code of the Russian Federation).

What to do right now?


You need to be ready today - to have the tools to switch to the remote format of labor relations with employees - to prepare draft labor contracts with remote employees and begin their discussion with the team.

Decree of the President of the Russian Federation of March 25, 2020 No. 206 “On the announcement of non-working days in the Russian Federation” established a non-working week for all employees of commercial and other organizations with a few exceptions. This order does not contain an exception for remote employees - they are also not obliged to work from March 30 to April 3. But according to the explanations of the press secretary, it turns out that remote work is encouraged and employees must work (here it is, the benefits are already obvious!).

If you are not yet working remotely, you can set a non-working “vacation” for employees by issuing an internal order of the company, referring to the Decree, signed by employees on familiarization with or sending the order by e-mail.

We want to work. How to attract employees to work during the holidays?


As a general rule, in the established non-working week, employees relax while maintaining wages. However, Presidential Decree No. 206 does not prohibit the involvement of employees in the work according to the rules of work on non-working days.

In accordance with paragraph 3 of the recommendations of the Ministry of Labor to workers and employers in connection with the Decree of the President of the Russian Federation dated March 25, 2020 No. 206 “On the announcement of non-working days in the Russian Federation”, it can be concluded that payment for work during the non-working week is carried out in the usual manner ( and not in double size, as for work on a weekend or a non-working holiday). This means that there is no difference in the remuneration of employees who went to work and those who decided not to work.

Please note that in order for an employee to go to work during the non-working week, it is necessary to obtain consent or a statement from him to confirm the fact that he left on a voluntary basis and is familiar with the payment rules.

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