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Editorial

REMOTE WORK: ISSUES AND PARTICULARS OF LEGAL REGULATION IN KAZAKHSTAN AND ABROAD

December 2016 - Employment. Legal Developments by AEQUITAS.

More articles by this firm.

Yekaterina Khamidullina, Associate, AEQUITAS Law Firm

The era of globalization and information systems development brings about new non-standard forms of employment designed to meet the modern society needs.  One of such new and flexible forms of employment is "remote work" that has already been legislatively secured in most countries of the world.

The definition of "remote work" is encountered in the CIS legislations, including Kazakhstan and Russia. Research articles also often operate the term "remote work," while the EU countries and the US prevalently utilize the "telework" concept. The author's opinion is that the above concepts are basically synonymous.

What are the advantages of remote work for participants in labor relations?  What international experience of remote labor legal regulation would be useful to apply in Kazakhstan?  The answers to these and other questions are addressed below.

REMOTE LABOR REGULATION ABROAD

European Union

In 2002, the EU signed the Framework Agreement on Telework, in which "telework" is defined as "a form of organizing and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employers premises, is carried out away from those premises on a regular basis."

The key points and the so-called "minimum set of guarantees" to ensure teleworker rights, which the Agreement signatory countries have undertaken to incorporate into their national legislations and collective agreements, are as follows:

  • Data protection;
  • >Voluntary nature of teleworking;
  • Equipment (the employer is responsible for providing, installing and maintaining the equipment necessary for telework, unless the teleworker uses his/her own equipment);
  • Organization of working time (the teleworker manages the organization of his/her working time); and
  • Privacy.

USA

The United States well deserve the title of one of the most advanced countries in terms of telework legislation and practice development.  Primarily noteworthy is a very important feature of the United States' labor law, which is viewed as an aggregate of two sub-branches: labor law for employees of non-governmental (private) sector of economy and labor law for government employees, the latter regulating the telework in detail.

The Telework Enhancement Act adopted in 2010 and covering all employees of federal executive agencies obligates each executive agency to establish a teleworking policy whereunder employees that meet the relevant criteria and have committed no disciplinary violations are authorized to telework.

Pursuant to this Act (§ 6501 3), "‘telework’ or ‘teleworking’ refers to a work flexibility arrangement under which an employee performs the duties and responsibilities of such employee’s position, and other authorized activities, from an approved worksite other than the location from which the employee would otherwise work."

The teleworking policy to be established by governmental agencies is to comprise, on a mandatory basis, the following provisions:

  • Voluntary nature of telework (telework is not the employee's right, and telework entitlement is considered on an individual basis, depending on the employee's personal (family) duties, health status, work specifics and other objective criteria allowing for a conclusion that the telework will not adversely affect the efficiency and quality of work performed);
  • Guarantees that the telework will not diminish the efficiency of the governmental agency's operations in general, and effectiveness of the teleworker's work in particular;
  • Mandatory written agreement on telework to be entered into between the governmental agency (employer) and the employee willing to telework;
  • Absence of objective obstacles to telework, including necessity to perform work at the employer's location due to specifics of the work performed or official duties (for instance, work with classified materials or security guard's or receptionist's work, etc.); and
  • The employee's obligation to complete a special interactive telework training program.

The Telework Enhancement Act and the Telework Guidance for federal executive agencies are available at https://www.telework.gov/, the official website for telework development and promotion in the US.

Russian Federation

The Russian labor legislation came to define remote work in 2013.  The RF Labor Code describes "remote work" as "performance of a labor function, as determined by the employment agreement, outside the employer's location, branch, representative office or another separate structural subdivision (including those located in another area) and outside the stationary worksite, territory or facility directly or indirectly controlled by the employer, provided that in order to perform such labor function and implement interaction between the employer and employee in matters relating to its performance the employee is using information-and-telecommunication public networks, including Internet."

The Russian law general provisions on "remote work" point out the specific way of interaction between the parties to employment agreement – exchange of electronic documents via secured qualified electronic signatures used by the remote employee (person coming to work remotely) and the employer.  The following actions can be performed in the form of electronic documents exchange:

  • Review of internal labor regulations and other local regulations, employer's acts and collective agreement by the employee;
  • Provision of documents required to execute the employment agreement by the employee coming to work, however, if so required by the employer, the employee must provide the notarized hardcopies of such documents; and
  • Provision of explanations or other information by the employee.

Since the HR document circulation in Russia is carried out in paper form, the federal law stipulates that the employment agreement must be made on paper within three (3) calendar days of the date the employment agreement has been executed through the e-documents exchange.

The remote employee can make himself/herself familiar with the employer's order (ordinance) on employment agreement termination in the form of an electronic document, however, on the day of such employment agreement termination the employer must send to the remote employee a duly executed hardcopy of the said order (ordinance) by registered mail with delivery notification.

Unlike the US legislation, according to which the telework agreement is to specify the telework performance location agreed upon by the parties, the RF Labor Code requires that the remote employment agreement specify the employer's location.

REMOTE LABOR REGULATION IN KAZAKHSTAN

If compared to the EU countries, the United States and Russia, remote work in Kazakhstan is poorly regulated at the legislative level.  The RK Labor Code of 2015 contains only one article dedicated to this matter.

"Remote work is a special form of labor process implementation outside the employer's location, using in the process of work the information-and-communication technologies" (paragraph 1 of Article 138 of the RK Labor Code).

The common approach to remote work in the Kazakh and Russian legislation is that telework means work performed outside the employer's location on a permanent basis.  The employees have no legal possibility to combine "stationary" (work at the employer's location) and remote work, although in practice this combination is very widespread.  On the contrary, the EU and the US legislatively secure this possibility, and part-time telework is deemed normal.

In Kazakhstan, the employer must provide to the employee the means of communication and bear the costs of their installation and maintenance, or pay compensation to the employee, if the employee uses his/her own means of communication on a permanent basis.  The amount and procedure for the payment of such compensation is to be set out in the remote employment agreement.  Upon agreement of the parties, the employee may also be compensated for other costs associated with the performance of work for the employer (for example, electric power, water supply, etc.).

Taking into account Kazakhstan legislation requirements and international experience in the field of remote work, it seems appropriate to include in the employment agreements on remote work the following provisions:

  • Place of work (premises leased by the employer or employee's place of residence, or other worksites);
  • Employer's obligations (including special obligations regarding provision of the means of communication or payment of compensation to the employee);
  • Work and rest regime (established as per the standard procedure, flexible working time also possible);
  • Employee's obligations (it is recommended to develop a detailed employee's job description, execute full material responsibility agreement and non-competition agreement, define the procedure for using the property provided to the employee and set a limit of costs, if necessary);
  • Occupational safety (instruction briefings and trainings as per the standard procedure, special instructions in occupational safety recommended for remote employees subject to the worksite specifics); and
  • Working time control procedure (daily/weekly reports, contacts at established times, usage of technical means of communication, etc.).

The RK Labor Code establishes a fixed work time recording for remote employees; the specifics of work time control also being outlined in the employment agreement.

Remote employees are included in the company payroll on equal terms with regular employees.  No preliminary medical examination document is required to enter into the remote employment agreement, because remote labor conditions are normal, not harmful.

One should also not forget that all statutory provisions relating to classical employment agreement apply to remote work agreements.  Hence, the remote employment agreement must contain all the mandatory terms and conditions of employment agreements provided for in Article 28 of the Labor Code.  If so agreed upon by the parties, the remote employment agreement can also include other conditions not contradicting the RK legislation.

As a conclusion, it is worth mentioning that both employers and employees are each year more and more interested in remote work.  However, one should not forget that remote work requires strong self-discipline and employee's personal responsibility, accordingly, is not suitable for all.  To avoid conflicts with remote employees, employers should clearly articulate all conditions "from the get-go" and set them out in the remote employment agreement, which would obviously facilitate monitoring of the agreement fulfillment by the remote worker.

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