The foreign word “outstaffing”, which, along with many other neologisms, has become part of vocabulary HR managers, in fact, means a fairly well-known action - the removal of an employee from the organization's staff.

Such a “retirement” may be an official transfer of the employee to work for another employer while continuing to work for the previous one. Another option for outstaffing is the transition to civil law relations after termination of the employment contract. Let's consider various options removing employees from staffing table depending on the type of change in relationship with the employer.

Staff reduction

Outstaffing begins as a regular reduction in the number or staff of an organization. That is, an order is issued about upcoming changes in the staffing table, then to the employees affected by the changes, in accordance with Part 2 of Art. 180 of the Labor Code of the Russian Federation, notifications are issued personally against signature at least two months before the upcoming dismissal. It is also necessary to remember that you need to inform the elected body of the primary trade union organization about the staff reduction. And if the decision to reduce the number or staff of employees may lead to mass layoffs of workers, then no later than three months before the start of the relevant measures, it is necessary to notify the employment service about this.

According to Articles 180, 81 of the Labor Code of the Russian Federation, the employer is obliged to offer the employee another available job, vacant position, which is available to the employer and corresponds to the qualifications of the employee, as well as his state of health. In this case, both an equivalent position and a lower (lower paid) position may be offered. Let us assume that another is of equal or lower position for the employee, this employer does not, which means that upon expiration of the notice period, the employment contract with the employee is terminated under clause 2, part 1, art. 81 Labor Code of the Russian Federation. The employee will be given a final payment (all payments due on the day of dismissal, including severance pay), and also remains for the period of employment average earnings(up to three months).

In the case of outstaffing, the employer can offer the employee a job in another (third-party) organization. True, in the Labor Code of the Russian Federation this rule is not enshrined in the form of an obligation to the employee. This means that the procedure for offering such work has not been established. This is the employer's personal initiative. You can offer a job in another company both before and after the two-month period.

Dismissal by transfer

“Resignation” involves working in the same place, but the employee is officially transferred to work for a different employer.

One of the most simple ways outstaffing is dismissal under Article 77, paragraph 5 of the Labor Code of the Russian Federation - the transfer of an employee, at his request or with his consent, to work for another employer. By mutual agreement between the two employers, the employee is invited to officially change his place of work and continue to work at his workplace and according to his usual schedule. And the provision of work for “general” personnel must now be carried out by mutual agreement and formalization of relations between the old and new employer.

Instead of an employment contract

Another fairly common type of outstaffing is the transfer of part of the staff to civil law relations. As a rule, specialists from the legal department or human resources department should prepare civil contracts in advance, and department heads should carry out preparatory work among the staff. It is necessary to explain why this outstaffing occurs (complex financial situation firms, lack of jobs, etc.). It is best to offer new civil contracts in exchange for resignation letters. So, if everyone agrees to switch to the GPA peacefully, the employer will save money both on staff reduction at the beginning of the reforms, and on social benefits and guarantees in the future. Well, if someone doesn’t want to, there’s nothing you can do, you’ll have to carry out a staff reduction procedure or look for other ways to save, for example, reducing wages due to a decrease in the volume of work or transfer to a part-time work week.

Cases from practice

Went to a contractor

Since outstaffing simply involves removing staff from the staffing table, this means that the staff will continue to work for the benefit of their previous employer. Thus, having officially transferred to work for the contractor company Tekhmontazh LLC, the finishing workers of SU-2 continued to work as before on the construction sites of their, but now former, construction department. The new employer simply became responsible for paying wages, sick leave and vacation pay, as well as providing clothing and equipment.

Work for a while

Often, organizations require workers for the duration of certain projects. And it is not known in advance whether they will be needed after the end of each project. Therefore, in most such cases, it would be quite appropriate to formalize civil legal relations with the people hired. But not all employers think about this and immediately register them as employees. But, in addition to the fact that these are expenses for wages and deductions, these are also obligations to employees: after the end of the project, they must be provided with some other work and salary. Here, of course, outstaffing will help. The main thing is to correctly substantiate that work on the project is not just temporary, but in all aspects it is suitable for civil law, and not labor relations. Well, then, either through a reduction in the number or staff, or in another legal way, remove employees from the staff, i.e. outstaffing.

Outstaffing (from the English out - outside, outside, beyond and staff - personnel) - removal of personnel from the staff of an enterprise with the subsequent provision of the same personnel to the enterprise under a civil contract.

Synonyms for the term “outstaffing” are considered to be such concepts as personnel leasing, personnel rental, and agency labor.

This service appeared on the domestic market after the 1998 default, in response to the need of those remaining in our country foreign companies reduce costs by any means possible ways. It is clear that the popularity of outstaffing grew in parallel with the expansion of Western business into Russia, which still remains the main consumer of the service (its share, according to various estimates, is 75-85%). But in recent years Among the clients of provider companies, the share of Russian enterprises is growing at a faster pace.

Six cases when a company needs outstaffing

1. Exit to stock markets, is interested in increasing the value of shares.

2. Limitations on the number of personnel.

3. Intention to reduce staffing levels without losing experienced specialists.

4. The desire to save money by regressing the single social tax, but does not have the right to do so.

5. Planning to hire workers in other regions without opening branches or representative offices.

6. The desire to place employees on the staff of an intermediary during the probationary period in order to evaluate their work without taking on additional obligations.

As part of this service, the provider undertakes:

Enrolling employees into your staff and registering labor relations with them;

Maintaining work records;

Calculation and payment of wages, as well as contributions to social funds;

Registration of sick leave and vacations;

Preparation of all types of certificates at the request of employees. The provider also undertakes the administration of advance reports, compulsory insurance employees.

There are two types of outstaffing:

Outstaffing of personnel already on staff of the enterprise;

Outstaffing of newly recruited personnel.

In the first case, employees who have already had an employment relationship with the enterprise for some time are removed from the staff. As a rule, such a transfer is carried out by dismissal from the staff of the enterprise with immediate enrollment in the staff of the provider organization. At the same time, the provider organization provides the employee to the enterprise from which the employee was dismissed. In the absence of a conflict with the employee, dismissal and immediate employment in the provider organization is carried out according to the relevant statements of the employee.

In the second type of outstaffing, two different cases can be seen:

An existing vacant staff unit is transferred to outstaffing;

There is no staffing unit identical to the recruited employee at the recipient enterprise.

As a rule, the second type of outstaffing is characterized by the fact that the provider is transferred not only the function of the employer, but also delegated the authority to search and select personnel who will be provided to the recipient.

This typification in the context of modern Russian legislation and the emerging judicial practice, especially regarding tax law, determines for the recipient a different approach to justifying the “business goal” of attracting personnel. Of course, providers also need to take these realities of Russian outstaffing practice into account.

Outstaffing should be distinguished from outsourcing; these concepts are related as specific and generic.

Outsourcing (from the English out - outside, outside, beyond and source - source) is the transfer of functions structural unit enterprise, or certain support functions of a third party enterprise. Outsourcing includes external accounting services, cleaning activities, courier services etc.

As you can see, outstaffing is one of the types of outsourcing in the sense that the provider is transferred the functions of the employer in relation to the outsourced personnel.

In most cases, outstaffing can be distinguished from outsourcing by the relationship between the customer of the service and the personnel directly performing the work. With outstaffing, personnel come under direct subordination to the recipient; the provider’s task is to select personnel that meet the specified characteristics and enter into labor relations with them. Outsourcing can be characterized complete absence communication between the customer of services and the direct performer (personnel). For example, employees of a cleaning company may come to a customer’s office at night when no one is there, without coming into direct contact with the customer.

Currently, outstaffing in the Russian market is mainly carried out by Western recruiting agencies: Kelly Services, Manpower, Coleman Services Inc, Ventra Employment, etc. The priority of foreign agencies is obvious. Behind them is the experience of several decades, proven methods, proven technologies. Among domestic companies, Anchor provides a similar service. Note that on at the moment The market is only at the beginning of its development, so its potential is very high. Volume Russian market services for the selection of temporary employees is estimated at $80 million (for the search for managers senior management– only $15 million – $20 million).

There is an opportunity to save time and money, as well as increase business efficiency through outstaffing, when a company hires the employees it needs for a period of time, without expanding its staff and without burdening its HR officers and accounting department with unnecessary worries. In this case, employees are hired by employment contract another company - a recruitment agency (by law a “private employment agency”) - and rents them out to other companies.

What is outstaffing?
Outstaffing (from the English out “out”, staff - “staff”) is the removal of personnel from the company’s staff and their registration in the staff of the outstaffing company. She takes full responsibility personnel issues, provides employees with the required qualifications and bears full responsibility for the quality of their work.

There are several reasons why it is profitable for a company to use the labor of “rented” workers:

• Reducing the burden on accounting and personnel service

The personnel agency is responsible for calculating wages, paying “salary” taxes, calculating and paying benefits and vacation pay, drawing up and submitting “salary” reports to the Federal Tax Service, the Social Insurance Fund and the Pension Fund. In case of violations, it will pay penalties and fines, as well as all additional charges. The company itself will remain aloof from all these problems.

The company does not need to involve accountants and HR employees in this. It simply pays a fixed amount for each employee.

• Replacing an employee is not a problem

When outstaffing, the agency is responsible for selecting and replacing personnel (during the vacation or illness of a “rented” employee). You won’t have to deal with hiring and firing company employees.

• The issue of employment of foreigners has been resolved

Foreigners are hired according to special rules (more about this in the article “How to register a foreign employee: step-by-step instructions”), violation of which may result in significant fines. In case of an outstaffing agreement, the agency will check the documents of foreigners and inform the Ministry of Internal Affairs about the hiring of employees from abroad.

• Fewer labor audits and claims

Labor checks regarding temporary employees will be carried out by the agency, since it is with it that the employment contracts of employees working on outstaffing terms have been drawn up. This means that all questions regarding the registration of labor relations will be addressed to the agency, and it will have to provide documents and explanations at the request of the “trudoviks”.

• The risk of being called to the tax office is reduced salary commission

Outstaffing of personnel is prohibited, but it can be used

Until 2016, the Labor Code did not have such a concept as “agency labor,” so it was not regulated at the legislative level, and outstaffing workers were a frankly powerless category of workers. For example, the receiving party could at any time refuse an employee hired in this way - without explanation or severance pay. At the same time, the employee himself, hired under an outstaffing agreement, found himself in a very limbo position: he was hired by one organization, and he works for another. In this case, the actual employer does not bear any responsibility.

To rectify the situation and protect the interests of agency workers Labor Code The Russian Federation was supplemented with Article 56.1, which defined agency labor as work at the order of an employer in the interests and under the direction of another company, and prohibited its use ( Federal law dated 05.05.2014 No. 116-FZ). But the new article did not introduce an unequivocal ban on hiring personnel.

The opportunity to send workers to another employer still exists today. But for this it is necessary to comply with a number of conditions that are prescribed in Chapter 53.1 of the Labor Code of the Russian Federation.

Temporary staff: who and in what cases?

The provision of employees to another employer can only be temporary – for a period of no more than 9 months. Allowed only in cases where it is:

1. Obviously temporary work related to the expansion of production or services.
2. Replacement of a temporarily absent staff member.
3. Service and assistance in housekeeping for citizens.

In addition, an employment agency can enter into an employment contract with a provision for temporary provision with those who do not plan to work permanently. This:

• full-time students;
• single and large parents raising minor children;
• persons released from correctional institutions.

They are allowed to be sent to the host company in cases where, according to the Labor Code, a fixed-term employment contract can be concluded.

Hiring temporary staff is strictly prohibited in the following cases:

• replacing striking workers;
• performance of work in case of downtime, bankruptcy proceedings, introduction of part-time work in order to preserve jobs in the face of the threat of mass layoffs of workers;
• replacing employees who refused to perform duties, including due to a delay in wages of more than 15 days;
• performing certain types of work at objects of hazard classes I and II (the list of such works was approved by Order of the Ministry of Labor of Russia No. 858n, Rostechnadzor No. 455 of November 11, 2015);
• performing work in places where the working conditions are classified as 3rd or 4th degree of hazard or particularly dangerous working conditions;
• replacing those workers whose presence is a condition for obtaining a license, a condition for membership in an SRO or issuing a certificate of admission to a certain type works;
• performing work as crew members of sea vessels and mixed (river-sea) navigation vessels.

As you can see, it is possible to hire a freelancer, but subject to numerous restrictions.

At the same time, strict requirements appeared for the companies themselves that provide personnel.

Who can provide workers

Not every company can engage in outstaffing. According to the law, only private agencies that have undergone special accreditation in Rostrud and meet the following conditions can provide personnel for rent:

• authorized capital – at least 1 million rubles;
• there are no debts on taxes and contributions;
• from the agency management higher education and work experience in the field of employment of at least 2 years over the last 3 years;
• the manager has no criminal record for committing crimes against the individual or in the economic sphere;
• payment of taxes on common system taxation (since special regimes are prohibited for them).

The list of accredited agencies is posted on the Rostrud website in the section “Open Data” > “Register of Accredited Private Employment Agencies”.

In addition to employment agencies, some organizations can also provide temporary staff. For example, the parent organization of a subsidiary or a company party to a shareholders' agreement - to each other.

Who is responsible for the personnel

Since main reason Since the introduction of amendments to the Labor Code of the Russian Federation was aimed at protecting the interests of workers, the company receiving hired personnel has become more responsible for it:

1. It is necessary to conclude a special additional agreement with the employee to his main employment contract indicating all the data of the receiving party (there was no such requirement before 2016).
2. “Adopted” employees must receive no less than full-time employees of similar positions and qualifications. Despite the fact that the salary is paid by the agency and not by the receiving party, the size of the salary directly affects the cost of the employee provided, so it will not be possible to save on freelance staff salaries.
3. If personnel are involved in harmful and hazardous work, then the contributions will also be higher, which means that the agency will “include” these contributions in the cost of the provided employee.
4. Workplace accidents are investigated by the actual employer, not the agency.
5. Responsibility for non-payment of wages to “rented” employees lies with both employers – both the direct employer and the agency. By default, their “primary” employer owes them a salary. But if for some reason he cannot pay the employees, they can demand payment from the company where they directly worked.

Obviously, after the adoption of amendments to the Labor Code, concluding outstaffing agreements has become significantly more difficult. And some companies were forced to abandon them altogether.

Differences between outstaffing and outsourcing

In some cases, it is advisable to draw up an outsourcing agreement instead of an outstaffing agreement. Although outstaffing is often confused with outsourcing, they are completely different concepts. And outsourcing in our country has not yet been subjected to such severe persecution.

Outsourcing is the process of a company transferring part of its production or business processes to another company, whose specialists are experts in a particular field.

Outstaffing is the rental of employees, and outsourcing is the provision of specific services.

To better understand the difference, let's give a simple example. The company does not have a full-time accountant. And the agency provided the employee for this position. In that case we're talking about about outstaffing. However, such an accountant will be able to work for a maximum of 9 months.

Outsourcing is another matter - that is, if a company transfers accounting in general or its individual sections, for example, payroll, to a third-party professional organization. In this case, a regular contract for the provision of paid services is concluded, where the norms of civil law, and not labor law, apply.

So what is the difference between HR outsourcing and staff outstaffing? For a clearer understanding of the similarities and differences, we provide a small table.

Growing difficulties when laying off employees, problems with dismissing a bad employee and grounds for paying “golden parachutes”: at the Pravo.ru conference on labor law they discussed how the position of the courts in labor disputes is changing, what is the secret effective interaction HR officer and lawyer and what will help the company defend its position in the dispute.

Reductions, layoffs, vacancies: a view from the courtroom

Reductions and dismissals - it is in these cases that a dispute between an employer and an employee risks going to court. However, what awaits each of the parties at the end of the meeting is not easy to predict: practice is constantly changing. Marina Ryzhkova, partner, head of the Russian labor practice. One of the trends relates to disputes over the dismissal of an employee: there are many more cases where an employee manages to achieve reinstatement on the grounds that the documents were signed by an unauthorized person. Before signing, check who should do this according to the company’s charter - the general director or the board of directors, Ryzhkova warned and advised to play it safe: for example, get the approval of the board of directors and put the required signature only after that, because it is no longer possible to obtain consent after the fact - the person has the authority must be present at the time the decision is made.

Another trend is the requirement by the courts to determine the preemptive right, Ryzhkova noted: today there are already several court decisions in which the court requires such an approach. It is believed that the one who has higher labor productivity and qualifications has a preferential right - and some courts take the union “AND” literally, demanding that the selected employee have better both indicators. This creates difficulties if you want to get rid of an ineffective employee, because he may actually have a better education than a more efficient colleague. You can press in court on the discrepancy in business qualities: they also include health status, so the employer will have something to cling to if the careless employee has also been sick for a long time and often.

Another problem of labor law is the attitude towards vacancies. In different regions, there is an ambiguous attitude towards whether positions for workers on long-term vacations can be offered as vacancies. And if in Moscow this is not considered a vacancy, then in the regions this happens: “It is better for the employer to check the practice of the region, because the employee can go to court at his place of residence, and if the second instance of the region adheres to such a strange point of view, it must be taken into account.” , recommends Ryzhkova. It is worth paying attention to the practice of Moscow courts, which recognized vacant positions in which other employees work part-time; Ryzhkova warned about other “oddities” of the courts. Another suspicious trend is to look at whether civil contracts are concluded during staff reductions. “This meant that there was a job that could be offered to a redundant employee,” Ryzhkova says about the logic of such decisions.

How to fire without problems

Dismissing an employee carries many risks for the employer. A popular question is what to do if an employee is sick on the date of dismissal. The optimal scenario is to move the date to the first day of his return, says Marina Ryzhkova. If the employee disappears, it is easier to postpone the dismissal than to solve the problems in court later.

As for dismissal for repeated failure to fulfill duties by an employee, the employer should remember that it is impossible to dismiss “in one day” for a combination of violations. “Dismissal, according to fully established practice, occurs for the last violation. You cannot first apply a penalty and then dismiss an employee. An employee who already has a penalty must commit a violation again: then there will be grounds for his dismissal,” Ryzhkova said about the practice of the Supreme Court, which closed loophole for employers.

When it comes to being fired gross violation, the most common of them is absenteeism. But there are pitfalls here too. If an employee has a changing schedule, you need to make sure that it is communicated to the employee for signature, and not just posted for everyone to see in the hallway. It is worth taking care to define the concept " workplace"It should be remembered that if a person was in the office but did not work, it is impossible to prove absenteeism.

If the employee did not show up on site, but brought a certificate, judging by judicial practice, it will not be possible to fire him. "Courts recognize visiting a doctor good reason, despite a reasonable question about why the employee decided to go to the doctor on a workday. All you can do is not pay for this time." If we are talking about a pregnant woman, it is better to forget about dismissal: the protection is almost absolute.

Problem payments

The company may also encounter problems when it comes to payments upon termination of an employment contract by agreement of the parties. Alexey Dykov, director of organizational development Etalon Group of Companies listed the pitfalls of such payments: the need to prove the economic justification of the payment to the employee; the presence of a “safe corridor” when setting the amount of payment; criteria that may be taken into account when determining the amount of severance pay.

The courts are showing significant interest in disputes related to “parachutes” when terminating employment contracts. Dykov listed the practice and concluded that today there is no presumption of economic justification for paying an employee - it will have to be proven in each specific case. In addition, the significant size of this amount and its obvious inconsistency with the circumstances characterizing the employee’s work activity require the taxpayer to justify the nature of the payment made and its economic justification. Moreover, this obligation has not been eliminated due to the entry into force of the new version of clause 9 of Art. on January 1, 2015. 255 of the Tax Code, according to which severance pay began to be included in labor costs, Dykov indicated.

In fact, the court believes that the company is trying in this way - by adding significant payments to labor costs - to reduce income tax, although this sometimes sounds absurd, the speaker noted. "Should arbitration at all tax dispute fight such abuses?" he asked a rhetorical question to the audience. Be that as it may, if we are talking about significant amounts, it is better to collect arguments for the tax authorities in advance, Dykov noted.

Controversial outsourcing

Vladimir Koposov, Head of legal at Kelly Services, spoke about labor disputes in the provision of labor and outsourcing of personnel.

According to him, one of the most common grounds for dispute is the term of the employment contract and its termination. To minimize risks, the term of the contract should be equal to the term of the customer’s application for the work, Koposov warned. In the event of a dispute, an outsourced employee has a great chance of being reinstated - and on a permanent basis as part of the customer's staff. Such risks arise if a company refuses not a service, but a specific employee, the service is not filled out with an application or is completed ahead of time without proper registration.

We also have to deal with disputes related to the early termination of employment contracts. Risks arise when the customer of the service signed the employee’s application, provided him with voluntary health insurance, promised bonuses and gave him access to corporate mail - or initiated dismissal.

Risks also arise when fixed-term employment contracts are repeatedly re-signed. In the latter case, Koposov recommended taking breaks between employment contracts, changing the position and functions of employees, and documenting the basis for the new involvement of the employee in the provision of services.

Try to prove it

Kristina Timoshenko, labor practice partner, spoke about general principles evidence in labor disputes and rules for preparing evidence for the court. Given that the employer is traditionally considered more strong point in labor relations - since it is he who creates and stores employee documents and has certain administrative rights - Kristina Tymoshenko recommended that employers take a proactive position in labor disputes and not delay in providing evidence and objections in the case. She also shared with the participants practical advice on the rules for preparing and systematizing written evidence. With regard to witness testimony, Tymoshenko recalled the need for preliminary preparation of witnesses to participate in court, the task of which is to minimize the risks of adverse events stressful situation, in which a witness may find himself unprepared for questioning. Finally, Tymoshenko noted that it is advisable for the employer to take care of issues of evidence at the stage of making personnel decisions and registering any personnel processes or events, since many things cannot be corrected or completed after the employee has gone to court.

Ivan Berdinskikh, Director of the Department of Legal Support and Control at Manpower Group, spoke about what we have to face in practice in resolving disputes related to compliance with labor protection legislation. He highlighted the issue of judicial practice on multi-fines and advised them to challenge them: “You may be lucky, or maybe not.” Another category of cases is medical examinations of drivers, and we are not talking about professional carriers, but about those who need a car for work and who are allowed to drive vehicles.

The labor inspectorate believes that even such employees almost need pre-trip examinations, recalls Berdinskikh, but the courts have previously indicated that there can be no talk of fines for the lack of a medical examination if the purpose of the employee’s work is not transportation. At the same time, in 2016, the Supreme Court voiced a different position: agreeing with the inspection fine when it came to sales representative without a medical examination. “So, if you decide that a medical examination is difficult, pay attention that the documents on the employee’s activities do not include cars and the need to have a category B license,” Berdinskikh warned.

Personnel officer and lawyer: working in tandem

Mikhail Popov, vice-president, director of the property and legal department of Hals-Development, and Mikhail Sivak, vice-president, director of the administrative department of Hals-Development, spoke about how to effectively organize the work of two divisions. When asked about who is more responsible for employees, both agreed: the main thing is to complement each other, and if questions of methodology remain with the legal department, then practice is a matter for the personnel department. The result is always the result of a symbiosis of two divisions, the goal of which is to prevent risks for the company.

They talked about working in difficult cases of dismissal of workers. “If the employer wants to part ways, he will do it anyway, and it is better to convey to the employee that the issue has already been resolved. This understanding will significantly improve the negotiations. And the prospects for the dispute are better explained using the example of judicial practice,” Popov advised.

In general, the speakers noted the importance of the personnel selection stage, in which adequacy turns out to be no less important a factor than professionalism: “You can train, but you can’t make them adequate.” If you understand that a person is toxic, that is, a mistake was made during the selection, it is better to get rid of him as quickly as possible: sooner or later the number of problems will outweigh the possible benefits, Popov is sure. Mikhail Sivak pointed out that he does not have a list of violations for which an employee will certainly be fired: “The question is what role we ourselves will find for the person, even if we initially made a mistake with the proposed tasks.”

Economic crisis negatively affected not only the state of the country's economy, but also the labor market. Remote work and outstaffing (agency labor) can help company management in optimizing personnel costs. Let's consider the features of each of these institutions, as well as their main advantages and disadvantages.

Remote work

Provisions on remote work appeared in the current legislation two years ago, when the corresponding chapter 49.1 () was added to the Labor Code of the Russian Federation. However, remote work has not yet become widespread, despite its practical benefit. Remote work implies the simultaneous presence of the following circumstances:

• the labor function is performed 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 (in this case, work can be carried out both in other regions and even countries, and in the same city as the employer);
• The employee uses the Internet () to work and communicate with management.

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Before the rules on remote work appeared in the Labor Code of the Russian Federation, employers established for remote working employees:

• traveling nature of the work (). Its key difference from remote work is the need to create a workplace for the employee, and, therefore, bear the costs associated with its operation and maintenance (pay for rent, public utilities etc.). In addition, the workplace today is subject to special assessment (Article 3 of the Federal Law of December 28, 2013 No. 426-FZ ""), and previously, until January 1, 2014, it was subject to certification. Consequently, the employer was not able to save significantly on this method. However, counsel at the law firm Baker & McKenzie Evgeniy Reizman emphasizes that the traveling nature of work is still used by some employers out of habit or ignorance when regulating the work of remote employees;
• home-based nature of work (). In accordance with the Labor Code of the Russian Federation, homeworkers carry out work at their place of residence using materials, raw materials and equipment provided by the employer or purchased by the homeworker at his own expense. Thus, home-based work, in contrast to remote work, is of a pronounced production nature, that is, it implies the production of certain products by an employee. However, due to the lack of special rules on remote work, employers had to resort to provisions on homeworkers even in cases where the result of the work was intangible in nature, and, for example, the employer’s paper or other similar consumables were used.

The emergence of a new institution that allows regulating remote work, many employers have been waiting since most large companies have a need to place their workers outside the office. For example, if the parent organization is located in Moscow, and employees work in other regions, and the company does not have the opportunity or need to open a branch or representative office there. Remote work solved this problem. However, before establishing a condition for remote work in an employment contract, the employer should take into account everything possible advantages and disadvantages (Table 1).

Table 1. Pros and cons of remote work for the employer

ADVICE

Average price for obtaining a strengthened qualified license electronic signature is about 7 thousand rubles. Information about accredited certification centers where you can obtain such a signature can be obtained on the website of the Ministry of Telecom and Mass Communications of the Russian Federation.

To make it easier to control execution labor function For employees working remotely, Evgeniy Reizman advises that it be stated in employment contracts with such employees and/or in local regulations company (for example, in the internal rules labor regulations) additional conditions: “They can provide for the obligation to communicate with the employer at a certain frequency or during certain periods of time, provide reports, etc.” For violation or improper performance of his duties, an employee can be subject to disciplinary liability in general order ().

Not only new employees, but also those who are already on staff can work remotely. To do this, the employer needs to formalize the change in working conditions in the general manner - notify the employee about the transfer to remote work, obtain written consent from him, draw up an additional agreement to the employment contract, in which it is necessary to stipulate the condition for remote work, issue an order to change the working conditions and make necessary changes to the employee’s personal card (,). At the same time, the employee retains his labor function and salary.

IMPORTANT TO KNOW

The conclusion of an employment contract on remote work is not a mandatory basis for registering a company with the tax authorities at the place of residence (location) of a remotely working employee ().

This is due to the fact that a separate division of an organization is any division territorially isolated from it, at the location of which stationary workplaces are equipped (), and remote work implies the performance of a labor function outside a stationary workplace (). Thus, the definition of remote work contains features that differ from the characteristic features of a separate division of the organization, so the employer may be exempt from the stipulated obligation to register for tax purposes at the employee’s location.

In this case, the employer has the right to contact the tax authority, which makes the final decision on tax registration based on the documents submitted by the organization on the performance of remote work by its employees.

Outstaffing

Outstaffing (or agency labor) is considered to be the performance by an employee, at the order of the employer, of work in the interests and under the control of a legal entity or individual who is not the employer. this employee. This method, as a rule, are used if there is a need to hire new employees without creating additional staff. Most often, agency labor is used in the development of a certain direction (for example, a company needs to create a website, so management can attract a programmer by hiring him on staff or entering into an agreement with him civil contract, or, which is much more practical, by finding a suitable person with the help of outstaffing and, after the specified period, painlessly parting with him).

At the moment, the provisions on outstaffing are not regulated in detail by the legislator, which allows companies to resort to it without any restrictions. As a rule, two organizations enter into an agreement between themselves, according to which one of them provides the other with personnel for an appropriate remuneration (equal, on average, from 2 thousand rubles to 5 thousand rubles, depending on the qualifications of the employees and the job function assigned to them) . The sending company enters into an additional agreement with the employee to the employment contract and indicates in it information about the receiving party and new working conditions (place of work, wages, etc.). The receiving party does not formalize the employment relationship with the employee.

Outstaffing has a number of significant advantages over employment according to general rules, since it allows the receiving party to optimize the costs of searching for personnel (the selection of candidates is undertaken by another company), reduce the load on accounting and personnel services (all necessary functions in relation to the employee are performed by the employing company) and reduce risks financial liability and labor disputes (since the employment relationship arises and continues between the employing company and the employee who actually works for another company).

However, from January 1, 2016, agency work will be officially prohibited (Federal Law No. 116-FZ of May 5, 2014, hereinafter referred to as Law No. 116-FZ). At the same time, Law No. 116-FZ establishes a number of cases in which the use of outstaffing will be allowed:

• temporary performance of duties of absent workers who retain their place of work (for example, women during maternity leave, employees on long-term sick leave, etc.);
• carrying out work related to a deliberately temporary (up to nine months) expansion of production or the volume of services provided;
• rendering to an individual, not being individual entrepreneur, help with housekeeping or personal services ().

Carry out activities to provide labor to workers (personnel), according to general rule, only accredited private employment agencies () will be able to do so. In some cases, these functions may be performed by others. legal entities(for example, if the company is an affiliate of the sending party, etc.).

Law No. 116-FZ does not prohibit temporary employment through outstaffing job seekers students, single and large parents raising minor children, as well as persons serving a sentence of imprisonment ().

At the same time, the law also establishes a number of prohibitions regarding outstaffing, for example, you cannot:

• establish wage conditions for workers sent to the receiving company that are worse than wage conditions for similar employees of this company ();
• replace, through outstaffing, workers of the host party participating in the strike, as well as perform work in the event of downtime, bankruptcy proceedings of the host party and the introduction of a part-time regime in the event of the threat of mass layoffs ();
• replace in a similar way workers of the receiving party who refused to perform work, including replacement of workers who temporarily suspended work due to a delay in paying them wages for a period of more than 15 days ();
• provide work under such conditions if the working conditions at the workplace are classified as harmful conditions labor of the third or fourth degree or dangerous working conditions ().

In addition, the receiving party will bear subsidiary liability for obligations to pay wages and other amounts due to the employee, to pay monetary compensation for violation of the established deadline for the payment of wages, vacation pay, dismissal payments and (or) other payments due to the employee ( ). In the meantime, no special requirements have been established for the use of agency labor and liability for failure to comply with them by the employer.

Despite the fairly detailed regulation of outstaffing by Law No. 116-FZ, a number of issues remain that require additional regulation. Thus, the problem of receiving personnel sent from abroad has not been resolved. With this international form of labor relations, a person works in one company, and is temporarily sent to a foreign, usually affiliated organization, in order to exchange experience. At the same time, he is registered in the main company, which pays him a salary and provides social package. It also does not indicate what to do if it takes more than nine months to expand the business.

However, given that this law has not yet entered into force, there is a possibility that all controversial issues will be settled before its provisions are put into practice.