Regulation of the work of remote workers: Analysis of judicial practice

Abstract

The article is based on the materials of the monitoring of judicial practice. As part of the monitoring, judicial acts of cassation instances in the field of implementation of legislation on the labour of remote workers were analyzed. The problems that most often become the cause of disputes are identified. During the analysis of disputes on the recognition of an employment contract concluded by the parties as a contract on remote work, it was found that the courts attach decisive importance to the actual conditions of employment, rather than the formal consolidation of the relevant conditions in the text of the contract. The problem of assessing the legality of interaction between the parties to an employment contract is also significant, which is determined by the specifics of such interaction, which in most cases involves the active use of telecommunications, information systems, and appropriate technical means. The problem of distinguishing the performance of remote work under an employment contract from the performance of obligations under civil law contracts seems to be relevant. In such cases, there is a contradictory practice based on different interpretations and assessments of factual circumstances. The complexity of the problem in relation to remote work is further aggravated by the fact that the very nature of remote work “blurs” some stable criteria for distinguishing labour and civil contracts (employer authority, employer control, etc.). The authors come to the conclusion that the existing problems of the practice of applying the norms on remote work are mostly generated not by defects in the legislation itself, but are associated either with individual shortcomings of a specific law enforcement process, or with general problems of the theory of labour law. In this regard, it seems most appropriate to generalize law enforcement practice on this issue and consolidate it at the level of a review of judicial practice or a resolution of the Plenum of the Supreme Court of the Russian Federation.