LEGAL REGULATION OF THE REMOTE WORK OF FOREIGN CITIZEN

ABSTRACT

This article analyses the remote work of foreign citizens. It touches the issue of legality of entering into an employment contract with citizens of other countries. The problem of determination of the legislation of the country which must be applied in the case of legality of such a contract is considered. Moreover, it is discussed whether the employer must control the employee's working hours and workplace.

Keywords: Remote work, labor law, digital law, foreign citizens, labor legislation, international relations, protection of labor rights, remote work.

In recent years, the topic of digitalization has been particularly relevant. Technological progress affects most areas of our lives. And the more technologies are created, the more new legal relations appear that need legal regulation. As a result, gaps in the law are formed and the legislator often does not keep up with all the innovations. This also refers to labor law.

The concept “remote work” was introduced into the Labor Code of the Russian Federation in 2013. It began to acquire particular relevance during the covid-19 period when many workers were transferred to remote work. But there are still questions that need to be regulated.

Thus, the labor legislation does not cover the problem of remote work with foreign citizens. Federal Law No. 115-FZ of 25.07.2002 (amended on 29.12.2022) "On the Legal status of foreign citizens in the Russian Federation" in Article 13 describes the labor activity of foreigners in the Russian Federation and their legal status. But neither the Labor Code of the Russian Federation nor other federal laws contain information on the regulation of remote work of foreign citizens. The Ministry of Labor and Social Protection of the Russian Federation does not recommend concluding an employment contract on remote work with foreign citizens, since in Article 312.7 of the Labor Code of the Russian Federation, the employer is obliged to ensure safe conditions at the workplace of a remote employee, respectively, it would be better to conclude not an employment contract, but a civil contract (Letter of the Ministry of Labor and Social Protection of the Russian Federation dated 16.01.2017. N14-2/OOG-245.). However, on the basis of the practice of the Supreme Court it can be concluded that, if legal relations are inherently labor ones, then they are regulated by labor legislation regardless of how they are formed. Thus, if an employer enters into a civil contract, in the event of a conflict, the court will first establish the nature of these relations, and then, after disclosing the essence of these relations, it will resolve the dispute under labor law. Considering the Russian practice of ensuring the safety of a remote worker, the Ministry of Labor explains that the employer must necessarily conduct an instruction, and if anything, investigate accidents that occurred during working hours.  The procedure for conducting an investigation is described in the Order of the Ministry of Labor of Russia dated 20.04.2022 N 223n. If the employee is in a different place of registration from the employer's registration, then the accident investigation is conducted by a commission formed by the employer or his subordinates, headed by the state labor inspector in the constituent entity of the Russian Federation where the accident occurred. If an accident occurs in another country, then this issue is regulated by Federal Law No. 321-FZ of November 4, 2014, which describes the procedure for investigating accidents on the territory of the EAEU countries. In relation to other countries, there are international treaties in which legal regulation takes place in the employer's country, as in Poland, or the employee himself can choose the legislation of which country, labor relations will be regulated as in Belarus.

To all of the above, it should be added that from the position of the Ministry of Finance, expressed in the Letter of the Ministry of Finance of Russia dated 26.08.2019 No. 03-04-05/65362, only residents of the Russian Federation must pay personal income tax and this tax is not levied on employees outside the country. Also, insurance premiums are not needed to be paid, since in Part 1 of Article 7 of Law No. 167-FZ of 15.12.2001, foreign citizens residing or staying in the territory of the Russian Federation are considered insured persons.

Does the employer need to control the employee’s working hours and workplace? In Article 312.4 of the Labor Code, the working time regime can be set by the employee, unless otherwise established by the employer. In our opinion, if the employee does not need constant communication with the employer, then there is no need to set working hours because the main thing is that the employee performs labor functions. But the situation with the workplace is much more difficult. In the Labor Code, the place of work is a mandatory item in the employment contract, and there are no exceptions for a remote work contract. The actual place of work of a remote employee is his location, and if the employee often changes his abiding place, then it will be necessary to change the employment contract, which is additional paperwork. In the practice of the European Union, there is the concept of mobile work, that is, without being tried to home. It is worth considering creating an exception for an employment contract on remote work, as well as adopting the practice of other countries.

Thus, the following conclusions can be drawn.

Firstly, the Labor Code of the Russian Federation does not imply the possibility of establishing remote labor relations with employees from other countries, but with the development of technology, it is worth considering this type of legal relationship. Although the Ministry of Labor recommends entering into civil-law relations, they are labor ones in their essence. The solution to this question is the creation or addition of existing laws filling this gap.

Secondly, the working time regime can be regulated by the employer’s local or other acts, or it can be set at the employee’s discretion. It is worth considering the employee’s rights and obligations when communicating with the employer, that is, the time of rest when the employee may not respond to the letters of the employer and the employee’s legal protection in this case.

Thirdly, the place of work must necessarily be specified in the employment contract as a general rule. A remote worker can choose a place of work that is convenient for him to perform his work function. The solution to this problem is to create an exception for employment contracts on remote work.

References:

1. The Labor Code of the Russian Federation of December 30, 2001 N 197-FZ. [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
2. Letter of the Ministry of Labor and Social Protection of the Russian Federation dated 16.01.2017.  N 14-2/OOG-245. "On the conclusion of an employment contract on remote work with a citizen of the Russian Federation residing (staying) permanently (temporarily) outside the Russian Federation and planning to obtain Czech citizenship." [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
3. Review of judicial practice of the Supreme Court of the Russian Federation No. 3 (2018) (approved by the Presidium of the Supreme Court of the Russian Federation on 14.11.2018). [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
4. Agreement between the Ministry of Health and Social Development of the Russian Federation and the Ministry of Labor and Social Protection of the Republic of Belarus, the Ministry of Health of the Republic of Belarus, the Ministry of Finance of the Republic of Belarus on the application of the Agreement between the Russian Federation and the Republic of Belarus on Cooperation in the field of Social Security dated 24.01.2006 (Minsk, 15.03.2011). [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
5. Federal Law No. 115-FZ of 25.07.2002 (as amended on 29.12.2022) "On the Legal Status of foreign citizens in the Russian Federation" (with amendments and additions, intro. effective from 11.01.2023). [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
6. Letter of the Ministry of Labor and Social Protection of the Russian Federation dated 02/26/2021. No. 15-2/OOG-493. "On the specifics of the organization and labor protection of remote workers." [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
7. Order of the Ministry of Labor of the Russian Federation dated 20.04.2022 N 223n "On approval of the Regulations on the specifics of the investigation of industrial accidents in certain industries and organizations, forms of documents, relevant classifiers necessary for the investigation of industrial accidents" (Registered with the Ministry of Justice of the Russian Federation 01.06.2022 N 68673). [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
8. Federal Law No. 321-FZ of November 4, 2014 "On Ratification of the Agreement on the Procedure for Investigating Industrial Accidents that Occurred with Citizens of One Member State of the Eurasian Economic Community while Working on the Territory of Another Member State of the Eurasian Economic Community". [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 22.03.2023).
9. Letter of the Ministry of Finance of the Russian Federation dated 26.08.2019 No. 03-04-05/65362. "On personal income tax from the income of an employee performing labor duties under an employment contract outside the Russian Federation". [Electronic resource] // Legal reference system "ConsultantPlus". – Access mode: http://www.consultant.ru (Accessed 27.03.2023).