Analysis of Violations of the Labor Rights of Citizens in the Remote Working Organization

Smirnova Mariya Sergeevna ORCID: 0009-0005-2866-126X PhD in Philology Associate Professor of the Department of Social and Humanitarian Disciplines, Vladimir branch of RANEPA 59a Gorky str., Vladimir, Vladimir region, 600017, Russia ms01052014@yandex.ru Other publications by this author

Listratov Ivan Vadimovich ORCID: 0000-0002-0791-7271 Student of Law Faculty, Vladimir branch of RANEPA 600017, Russia, Vladimir region, Vladimirskaya, Gorky str., 59a listratoff25@yandex.ru Other publications by this author

Today we are witnessing a gradual, but significant transformation of traditional forms of labor activity, as a result of which an increasing number of economically active population begins to perform a labor function in a remote format. The spread of distance employment is caused by various factors, the main among which are the constant improvement of information technologies, the rapid digitalization of the economy, the introduction of scientific and technological progress in various spheres of public relations. A significant role in the increase in the number of remote workers was played by the COVID-19 pandemic, which introduced numerous restrictive measures into the lives of most citizens in 2020, including the periodic introduction of a self-isolation regime.

According to many representatives of legal science, including O. A. Kolesnikova, A. A. Strebkov, both objective and subjective prerequisites for further expansion of the practice of remote employment have been formed in our country today ^{[6, p. 62]}. This form of labor activity has various advantages and disadvantages for both employees and employers, which also becomes the subject of research for individual authors ^{[11, p. 196-198; 17, p. 320]}. Emphasizing the relevance of the topic under consideration, A. A. Strebkova points out that in world practice, the use of remote labor increases annually by about 25-30% ^{[16, p. 375]}.

The spread of the remote format of work in Russia could not go unnoticed by the legislator. In 2013, measures are being taken to legislatively regulate new phenomena in the field of labor, the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) is supplemented with a new chapter 49.1 "Peculiarities of regulating the work of remote workers". Currently, from Article 312.1 of the Labor Code of the Russian Federation, which contains the legal definition of remote (remote) work and its general provisions, it is possible to identify the key signs of this form of employment from a legal point of view:

1) remote work involves the performance of a labor function defined by an employment contract; therefore, in its pure form, it can exist only within the framework of labor relations;

2) the labor function must be carried out outside the location of the employer or its structural subdivision;

3) the actual workplace of the remote employee is not under the direct or indirect control of the employer;

4) information and telecommunication networks and public communication networks are used to perform work and interact with the employer;

5) the employee's performance of the labor function remotely can occur on a permanent basis or temporarily;

6) remote performance of labor may be established by an employment contract, an additional agreement to it or a local regulatory act ^[2].

The field of labor relations under consideration continues to undergo legal regulation and reform, taking into account changes in public relations and various challenges of the time. For example, as a result of changes in labor legislation regarding remote work from 2022, employers have the right to carry out electronic personnel document management (Articles 22.1, 22.2, 22.3 of the Labor Code of the Russian Federation). At the same time, the transition to EDI for employers and employees remains a right, not an obligation. In addition, in 2022, the labor protection requirements that an employer must fulfill in relation to remote workers were expanded (Article 312.7 of the Labor Code of the Russian Federation) ^[2].

In the field of remote employment, there are inevitably diverse violations of the labor rights of citizens. At the same time, it can be stated that judicial practice is focused on achieving the fullest possible compliance with the legitimate interests of employees. Thus, the Supreme Court of the Russian Federation has repeatedly defended the rights of remote workers, pointing to the equal scope of their rights in comparison with other employees [see, for example: 3]. Analyzing the norms of labor legislation and judicial practice, it is possible to identify a number of possible violations of citizens' labor rights in order to subsequently assess their actual prevalence by means of a sociological survey:

1) Improper execution of an employment contract or an additional agreement to an employment contract providing for the remote performance of an employee's labor function, in which the provisions of Article 312.2 of the Labor Code of the Russian Federation and other legal norms are violated. An example is an employment contract of a remote employee, in which there is no indication of the remote format of performing the labor function.

2) Incorrect calculation of the working time of a remote worker, the discrepancy between the time actually spent on work and the established time. This violation potentially carries a high prevalence due to the complexity of estimating working hours outside of a stationary workplace, as well as due to certain features of accounting for employees' working hours at a "remote location". For example, in accordance with Part 6 of Article 312.4 of the Labor Code of the Russian Federation, the time of interaction of a remote employee with an employer (meetings, transmission of instructions, explanations by phone) is included in working hours.

3) Illegal forced transfer to remote work. This violation can be said in the case of transferring an employee to a "remote" without his consent on the initiative of the employer in the absence of grounds provided for in Article 312.9 of the Labor Code of the Russian Federation.

4) Illegal dismissal or imposition of disciplinary penalties involving violation of Articles 81, 193 of the Labor Code of the Russian Federation or other norms of labor legislation.

5) Unjustified reduction of wages in connection with the transition to a remote work format, in which there is a direct violation of Article 312.5 of the Labor Code of the Russian Federation.

6) Lack of provision of necessary equipment, software, relevant information and other resources by the employer in violation of Article 312.6 of the Labor Code of the Russian Federation and other norms.

In order to assess the real prevalence of violations of the labor rights of remote workers and other indicators, 589 adult citizens of various age categories with education in various specialties were interviewed by the questionnaire method in November 2022. The sample consisted of 75.4% of women and 24.6% of men, among whom, by the time of the survey, more than 90% were in an employment relationship with an employer. More than half of the respondents (60.8%) noted the presence of remote work experience. Further, they participated in the survey separately from those who did not have such experience in order to obtain a clear separate result.

The most common offense that every fifth respondent with the experience of "remote" had to face was the lack of provision of equipment and other necessary resources from the employer. It seems that among the reasons for the high frequency of this violation, the key is the desire of the employer to minimize its costs.

More than 15% of respondents noticed the presence of overwork, in which the time actually spent on work did not correspond to the terms of the employment contract. 7.7% indicated improper drafting of an employment contract; 5.2% of respondents with experience faced unjustified salary reduction due to the remote format of work. Approximately equal shares noted illegal forced transfer to "remote" (3.7%) and unjustified imposition of disciplinary penalties (3.1%).

The most rare violations according to the survey results can be called illegal dismissals of remote workers. 2.5% of citizens who performed their labor function remotely had to deal with them.

Hence, it can be concluded that, despite a small percentage of the general spread, today violations of the labor rights of remote workers are a practical reality. In case of detection of such violations, the subjects who committed them are brought to various types of legal responsibility. Often, for violators-employers, administrative responsibility comes under Article 5.27 of the Administrative Code of the Russian Federation, various parts of which contain several qualified compositions of administrative offenses, which allows it to be applied differentially taking into account all the circumstances of a particular case ^[1]. For some violations, for example, illegal dismissal of certain categories of employees (pregnant women or women with children under 3 years old, persons of pre-retirement age who can also work remotely), the employer may be criminally liable. It seems that this circumstance is one of the reasons for the lowest frequency of such violations of labor rights as the illegal dismissal of a remote worker.

In practice, the labor rights of employees remotely performing a labor function may also be violated due to the existence of various kinds of collisions and gaps in the legal regulation of the relevant spectrum of labor relations. For example, N. L. Lyutov draws attention to the unsettled nature of issues related to the labor activity of Russian citizens who are abroad; the legal regulation does not cover the remote implementation of labor by Russian citizens in favor of foreign employers ^{[10, p. 43]}. It seems that at present the need to introduce specialized norms regulating this sphere of legal relations in a remote format, as well as conflict of laws bindings, is becoming obvious.E. N. Okhotnikova points out the impossibility of using the legal term "workplace" in relation to a remote worker, which leads to problems in law enforcement activities in cases of dismissal of employees of this category for absenteeism ^{[13, p. 132]}.

In our opinion, today this position can be called outdated in the light of the appearance in the domestic labor legislation of additional grounds for termination of an employment contract with an employee remotely performing a labor function. Thus, according to Article 312.8 of the Labor Code of the Russian Federation, an employer is entitled to terminate an employment contract if a remote employee does not interact with him without valid reasons for more than two consecutive working days on "labor" issues during remote work. In the context of distance labor activity, the considered institution plays the role of an analogue of absenteeism without a valid reason, taking into account the specifics of this form of employment. In this regard, the work of A. N. Kozlova seems to be of interest to us, proposing to supplement Article 312.8 of the Labor Code of the Russian Federation with a mechanism and an indication of the need to take measures to establish communication with an employee in order to reduce the number of violations when terminating an employment contract on a special basis for remote workers ^{[5, p. 415]}.

Many researchers, including G. G. Rudenko, Yu. V. Dolzhenkova, express a point of view about the need for regulatory regulation of payment outside of working hours and accounting for actual overtime work, which are of particular relevance for those working at the "remote" ^{[15, p. 54]}. In our opinion, the implementation of the actual accounting of overwork in practice will become a problematic issue due to the indirect interaction of remote workers with other employees and divisions of the organization, the relatively free definition of the work and rest regime, and other reasons. One of the most reasonable mechanisms in this regard, we see the introduction of "counters" of time spent in the system in working software products, but this method of accounting can be successfully used only by employees whose labor function is fully carried out in the digital space.T.N. Ovamikyan considers it expedient to develop standard forms of employment contracts and job descriptions for remote workers ^{[12, p. 113]}.

 It seems that the implementation of this researcher's proposal may serve as a prerequisite for reducing the number of violations of the rights of remotely working citizens associated with improper registration of an employment contract or the inclusion of conditions in it that potentially infringe on the legitimate interests of remote workers, capable of putting them in a losing position in the case of judicial protection of violated rights, etc.

According to E. A. Koryakova, more detailed reflection in the labor legislation is required by the specifics of performing remote labor with the participation of underage workers ^{[7, p. 352]}. At the same time, the expediency of this proposal at the present stage of development of domestic labor legislation raises questions. By itself, the remote format of the exercise of the labor function has such specifics that it does not entail any significant problems and difficulties in relation to minors. Of course, the work of this age category of citizens must meet a number of medical, socio-legal and other requirements in order to prevent harm to physical, mental and moral health. However, in this matter, we consider the volume of special rules fixed in Chapter 42 of the Labor Code of the Russian Federation and certain norms of labor legislation regulating the specifics of the work of underage workers to be sufficient. The general provisions cover a wide range of risks, provide for a large number of guarantees for minors, including reduced working hours. In our opinion, detailing this area of regulation in terms of the remote format of work is not necessary.Analyzing the problematic issues of implementing remote employment in Russia, S. V. Lemekhov calls for simplifying the process of obtaining a qualified electronic signature for a remote employee or assigning facilitating functions to the employer due to the legal significance of this tool in the course of formal communication, electronic document management ^{[9, p. 75]}.

Developing a related topic, O. A. Kozhevnikov notes the urgent need for a significant modernization of labor law norms for the introduction of paperless personnel document management ^{[8, p. 570]}. In our opinion, the rapid development of information technologies and the transfer of a significant part of public relations to the digital space really require adaptation of the regulation of the relevant field of work. At the same time, it is difficult to talk about the need to impose additional responsibilities on a certain side of labor relations, since in practice this can also entail various subjective problems. A more reasonable, compromise step in this regard is seen as measures to support participants in labor relations on the part of the state.It also seems noteworthy to us that some authors generally associate the prevalence of violations of the labor rights of remote workers with the conservatism of the current labor legislation in the regulation of remote labor, as well as its backwardness from the dynamics of public life ^{[4, p. 80]}, which suggests the existence of large-scale development prospects and confirms the validity of judgments about the need for adaptation of the legal regulation of labor relations to modern realities.

Thus, at the present stage, there is a large-scale spread of the remote form of labor activity of the population, which is facilitated by a large number of diverse factors.

For more than a decade, the process of legal regulation of this sphere of public relations has been carried out in the Russian Federation, issues of organizing remote work and ensuring the legal protection of remote workers are continuously being worked out. At the same time, a certain proportion of the subjects of the relevant legal relations have to face various violations in terms of remote performance of the labor function, the most common among which is the failure of the employer to provide the necessary equipment to the employee on the "remote".

Minimizing the number of violations of labor rights in the studied area becomes a prospect for the development of domestic law-making and law enforcement practice. In addition to the need for continuous improvement of relevant regulatory legal acts, general information work begins to play an important role. It should be noted that the position of D. V. Potapov is fair, noting the need to increase the level of legal culture of workers, a large number of whom, especially at a young age, do not realize the seriousness and real consequences of the lack of formal labor relations ^{[14, p. 47]}. Without paying due attention, and sometimes deliberately avoiding the consolidation of labor relations, a large number of subjects lose the guarantees provided by law, social protection measures and independently increase their vulnerability to offenses.

           It seems that one of the directions of information work of state and municipal authorities, foundations, public organizations should be legal education of the population on such issues as the importance of formalizing labor relations to protect against violations of labor rights, future pension calculation, etc. It is necessary to inform citizens about the negative aspects of "shadow" employment, about the labor rights provided to them legislation on rights and guarantees, methods of protection and self-defense of violated rights. The implementation of this area of work can take place with the help of various means: information booklets, videos, thematic lectures, courses, etc.

           In addition, it seems necessary to continuously improve the control and supervision of compliance with their labor rights of citizens, detailed elaboration of legislative and other acts on the organization and functioning of remote work. Among the specific measures that can be proposed based on the conclusions made during the study, it is possible to note the addition of Chapter 49.1 of the Labor Code of the Russian Federation with Article 312.10 regulating the specifics of concluding an employment contract and performing an employment function if a remote employee or his employer is permanently or predominantly abroad, as well as the procedure for resolving conflict of laws issues (for example, in accordance with an international treaty of the Russian Federation or otherwise). In our opinion, it makes sense to invalidate Part 5 of Article 312.1 of the Labor Code of the Russian Federation and devote a separate article in the structure of Chapter 49.1 of the Labor Code of the Russian Federation to the rules of electronic document management in the remote format of work, due to its convenience, also due to the essence and specifics of the "remote". At the same time, the need was also noted to facilitate the procedure for issuing an electronic signature or the use of other means to increase the availability of electronic document management and the most remote format of work for all categories of the population.

            In our opinion, the adoption of practical measures aimed at ensuring the protection of the rights and legitimate interests of remote workers should be preceded by a comprehensive and thorough scientific study of legal and socio-economic aspects.