The director forbids working remotely. Has the right to?

Handling work from your home office? This does not mean that you can stay remote forever.

As soon as we figured out how the law on remote work works and many began to get used to telecommuting, the country began to abolish quarantine measures. There is a vaccine, the epidemiological situation seems to be settling down, and the Kremlin even predicts that we will return to our usual life this summer.

Of course, employers began to drive employees from remote locations back to their offices. But do they have the right to do so?

Does the boss have the right to prohibit working remotely?

Regarding remote work, as in many others, the regions are looking at Moscow. In October 2020, Sergei Sobyanin demanded that at least 30% of employees be transferred to remote work, and other governors immediately intercepted the initiative. In January of this year, the capital’s mayor canceled the requirement, and employers did not even wait for a similar decision from local authorities. At the same time, the past year has shown that most office workers can work effectively everywhere: even from home, even from the office.

– 45% of professionals say that their productivity with the advent of the pandemic has not changed in any way and has remained the same. And as many as 17% note an increase in their productivity, – says Alex Steinhardt, CEO of the recruiting company Hays in Russia. – Employers agree with them: 41% of companies indicate that the productivity of their employees has remained the same, and 10% noticed an increase in productivity.

The study involved 4385 professionals and 545 employers – representatives of Russian and foreign companies operating in Russia.

No matter how well you work from home, the boss can return you to the office at any convenient (for him) moment. But only in one case: if you did not conclude an additional agreement to the employment contract. In a legally ideal world, it must be signed by the employer and employee before the latter leaves for remote work. The document must contain two dates: the exit to remote mode and the return to the office.

– If the contract specifies the date of leaving the office, for example, April 1, 2021, and there is no clause that the employer has the right to unplanned call the employee to the office, the boss has no right to pull the employee out ahead of time. This does not change unilaterally, ”says lawyer Andrei Konyshev. – The company’s management has the right to issue an order to return to normal operation, but here it is also important to remember that the agreement was not concluded unilaterally. This order can be challenged. Naturally, the employer will not like the fact that the employees did not go to work, and he can churn out orders first about absenteeism, then about dismissal. This can be challenged in court.

Andrey Konyshev is a partner lawyer of the Katsailidi & Partners law firm, graduated from the Ural State Law Academy, a lawyer in civil and criminal cases, has repeatedly won cases in favor of ordinary citizens on the recognition of ownership of real estate, on the recovery of moral damage due to poor quality medical operations, about the restoration in the queue of those in need of housing.

If you only have a verbal agreement with your boss about remote work, you will have to return to the office. But even here you can find good reasons to stay at home.

What are the valid reasons?

– When submitting an application to the employer for transferring to remote mode, the employee must indicate the reason for his decision, for what reason he decided to switch to remote work, says Andrey Konyshev. – The reasons for the transfer may be different. For example, a person fears for his life because of the coronavirus, while working in a large team or in an open space. Or if there are young children at home. All this can be a reason for transferring an employee to remote work.

If you have children under the age of 14 who do not go to kindergarten or school because of the same COVID-19, this may also be a reason not to go to the office. You can always explain your reasons to the boss, but the fate of your remote worker still depends on the boss.

What if the chef doesn’t provide equipment for working from home?

By law, while working remotely, your boss must provide you with the necessary equipment, but if he decides to start a cold war and take your fishing rod, then he is playing against the rules. The time when you are unable to fulfill your direct responsibilities will be considered downtime.

– We must not forget that there are small towns or villages where there are problems with communication. For example, when a teacher is transferred to a distance learning format, a problem may arise that he lives in a village where there is no technical opportunity to connect to the Internet. In this case, the law provides for the transfer of the employee to a state of forced downtime with appropriate payment, – says Elena Kosakovskaya, deputy head of the department of social and labor relations and social partnership of the Federation of Independent Trade Unions of Russia.

True, idle time is not paid very high – two-thirds of the tariff rate or salary. If the employee’s salary is equal to the minimum wage (12,130 rubles), then for idle time he will receive a little more than eight thousand.

– An employee has the right to work from home, using the equipment and resources that the employer is obliged to provide, – says Andrey Konyshev. – If the boss does not provide the resources to carry out activities at home, the employee has the right to submit a reasoned complaint to the labor inspectorate and the prosecutor’s office. These authorities are already making an appropriate decision – to satisfy the complaint or not. Naturally, after the verification.

Can the boss pay less?

If you stay at home, but continue to cope with work, do not get lost for several hours (or even days) and always get in touch when necessary, there is no reason to reduce wages.

“If the employer wants to cut wages, then he must reduce the working day and the number of orders,” says Elena Kosakovskaya. – This should be fixed in a supplementary agreement to the employment contract: certain duties are removed from the employee for the duration of the remote form of work. Such things must be documented, otherwise there will be a violation of the Labor Code in terms of wages. If the employer reduces wages without reducing the workload, this is a reason for contacting the Federal Labor Inspectorate, trade union lawyers, the court or the prosecutor’s office.

The boss can fire if he refuses to go to the office?

Here we return to the same supplementary agreement to the employment contract. If the period of remote work prescribed in it has ended, and you have no good reason to ignore the return to the office, the boss has the right to count the days of absence as absenteeism and fire you under the appropriate article.

Can you challenge your boss’s decision?

If you disagree with the boss who kicks you out to the office, you are sure that the truth is on your side, and are ready to ruin your relationship with the boss in order to save your job, write a reasoned complaint to the labor inspectorate and the prosecutor’s office. You can attach to it a birth certificate of minor children and other documents confirming your desire and ability to work from home, and most importantly, proving that you must stay remote.

In the complaint, you must indicate that the employer is significantly violating your rights. If your reasons are convincing, the labor inspectorate will arrange an unscheduled inspection for your boss. Depending on the resolution of the labor inspectorate, the prosecutor’s office will also make a reasoned decision. True, how long you after such procedures will hold out at work, no expert will say.

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