practice area articles
By Irina Anyukhina, Elena Agaeva , Anna Ivanova and Elena Chershintseva
Back to International Employment Law
KEY DEVELOPMENTS FOR 2020
The digitalisation of HR procedures is one of the most dynamic and perspective trends both in companies' practice and employment legislation. As of 1 January 2020, employers have started to record information about employees' labour activities and report this to the State Pension Fund in electronic form. COVID-19 also triggered electronic interaction between employers and employees, as well as between employers and state authorities. During the nationwide "non-working" period in Russia, parties to an employment contract were allowed to formalise transfers to remote work by exchanging scanned copies of the signed documents, and employers were obliged to register and submit information on forthcoming redundancies through official websites. These are just some examples of how HR digitalization has proven its necessity and indispensability in the face of new challenges, which indicates that this trend will be common on the agenda of state legislative and intracompany HR committees in Russia.
Changes to legislation in relation to the types of employment
New regulations on the types of employment are expected in 2020. Under the current regulations, there is no feasible legal framework for combining remote work and work from the office - an employer can establish either office work or remote work. Russian lawmakers are considering the Draft Law which will amend the Labour Code with a temporary work away from the office (telework). If the new work regime is adopted, it will be established in the employment contract and employees will be allowed to work from the office and from home. The Draft Law also provides for the abolition of enhanced qualified digital signature in cooperation with remote employees. A simplified transfer of employees to temporary remote work will also be provided for in exceptional cases (e.g., disaster, epidemic).
New regulation of personal data
New sanctions for failure to localise personal data in Russia have recently been introduced by the Code of Administrative Offences of the Russian Federation. Pursuant to the data localization requirement, once the personal data of Russian citizens has been collected, a data controller must ensure that certain operations performed on personal data are carried out with the use of databases located in Russia. The fine for non-compliance with the localization requirement may be up to RUB 6,000,000 for the first localization offence, and up to RUB 18,000,000 for subsequent offences.
The spread of the coronavirus infection has also made companies change their daily practices and led to new procedures. In particular, companies must now take steps to identify employees and visitors who have a temperature. In light of this, the Russian data protection authority ("Roscomnadzor") has issued new recommendations relating to the use of thermovision cameras in the workplace. Roscomnadzor confirmed that body temperature measurements and information about health conditions constitute sensitive personal data, and their processing is permissible where it is prescribed by labour law, or upon written consent of the data subject. Russian employment law provides that employees' health data may be processed without special permission if it relates to the employee's capacity to perform his/her employment duties. In relation to the measurement of a visitor's body temperature, Roskomnadzor has clarified that such individuals provide their consent by affirmative actions but it is important to note that individuals must be notified of the data processing (e.g., by placing signs) and the data must be deleted in a timely manner.
KEY DEVELOPMENTS FOR 2019
New restrictions imposed on employers of foreign citizens
New rules in immigration legislation will come into force in 2019. In particular, the sponsoring party of foreign citizens (e.g. the employing entity of a foreign employee, or an entity that issued an invitation letter for a business visa for its foreign guest) will be obliged to control the sponsored foreign citizens’ compliance with Russian immigration rules. For example, an employer will need to ensure that its foreign employees depart from Russia in a timely manner after termination of their employment.
There are also limitations on employers to arrange migration registration of their foreign employees. Foreign citizens will need to be registered at the place of residence in Russia and the widespread practice of registering foreign employees at the legal address of the employing entity is no longer allowed. Violation of the new rules may entail criminal liability for the company’s officers.
Forthcoming fundamental changes of the Russian data protection legislation
Privacy and data protection remains a priority for lawmakers and enforcement authorities. In October 2018, Russia signed the Protocol amending the Convention for the Protection of Individuals with regard to Automated Processing of Personal Data. Incorporation of the Protocol’s provisions into national legislation will be a step forward for the harmonization of Russian data protection legislation with GDPR. Officials of the Russian data protection authority have already announced that they are working on a draft bill to amend the current legislation. Data processing in the HR context has always been on the radar of the Russian regulator, so employers should monitor developments and be ready to comply with the new standards in the near future.
New regulations in the area of HR digital processing are expected in 2019. Under the current regulations, employment related documents must be executed in hardcopies and signed with wet-ink signatures as the use of digital signatures or scanned signatures is problematic. Russian lawmakers are working on creating an appropriate legal framework so that employers can embrace available IT solutions. As of July 2018 sick leave certificates can be processed electronically. HR digital issues are on the agenda of lawmakers in 2019 and there is a draft bill that proposes eliminating current restraints on digital signatures in the HR context. These new regulations will allow basic HR documents such as employees' labour books to be in electronic form.
KEY DEVELOPMENTS FOR 2018
Minimum Wage in the Russian Federation Increased
From 1 July 2017, the minimum monthly salary is RUB 7,800 (approx. USD 130). Regional authorities are authorized to set their own minimum salary as long as it exceeds the prescribed threshold. For example, the minimum salary in Moscow is RUB 18,742 (approx. USD 320) and RUB 17,000 (approx. USD 290) in St Petersburg.
Working Time Regime Amended in the Russian Labour Code
Employees with shortened working time shall be entitled to work irregular working hours only if their working schedule provides for at least 1 full working day (where regular working schedule in Russia is considered to be 40 hours per week, 8 hours per day). If an employee works a shortened working week (e.g. 35 hours per week), he/she can set out irregular work only if he/she works at least one 8-hour working day a week. If he/she works 7 hours daily, no irregular regime of work can be set.
This is an important change for both employees and employers, because almost all women with children under 18 months of age work under a shortened working regime to keep the state childcare allowance, but in fact stay at work outside working hours. The irregular regime allows employee to work after hours and have at least 3 paid additional days off a year, while the employer has no obligations to provide a monetary compensation for the overtime work in this case. Before the change, employees with a shortened working week were not allowed to have an irregular working regime.
Russian Supreme Court Solves Disputes on Contractual Jurisdiction
The Russian Civil Procedural Code provided that an individual was allowed to resolve an employment dispute not only at the employer’s location but at the place of their residence as well. Many employers decided to get around the law and include wording in their employment agreements with a view to ensuring that all disputes were to be resolved at the company’s location. However, the Russian Supreme Court held that such agreements are unenforceable, and pointed out that employees had irrevocable rights for concurrent jurisdiction.
KEY DEVELOPMENTS FOR 2017
Electronic document management in labour disputes
From 1 January 2017 new changes in the law allow courts dealing with labour disputes to deal with documents in electronic form. An official court website will also mean that statement of claims can be submitted electronically.
Independent assessment of employee qualifications
From 1 January 2017 an independent qualification evaluation procedure shall verify certain types of professional qualifications required by employers. This may be by a professional examination administered by the special qualifications assessment centres. Employers will determine the need for employees to pass the exam, and will have to comply with certain criteria (including setting conditions for the assessment, meeting the costs and obtaining the employee’s written consent).
Deregulation for microenterprises
From 1 January 2017, new rules shall apply to microenterprise companies. These will extend to companies with not more than:
- 15 employees;
- 120,000,000 rubles of annual income (approximately 1,714,285 Euro);
- 25% of its shares owned by the Russian Federation; and
- 49% of its shares owned by foreign legal entities not more than 49%
Where the legislation applies, certain pieces of legislation will not apply to these microenterprise employers, and there will be a standard form employment contract for these employers to use.
KEY DEVELOPMENTS FOR 2016
Ban on agency labour
On 1 January 2016, amendments to Russian employment laws were introduced which restrict the ability to outsource staff, and which impose a set of requirements for staff providers. Labour performed by an employee under instruction of an employer but for the benefit of and under the control of another person (not being the employee’s employer), is now therefore prohibited except in limited circumstances (such as temporary arrangement via private recruitment agencies).
Application of professional standards
From 1 July 2016, professional standards (or qualifications) are obligatory in certain roles/professions where the law sets out mandatory minimum requirements.
Employee right to salary during temporary suspension of work
Under Russian law, where an employer delays payment of salary for more than 15 days, employees are entitled to suspend work (i.e. stop working and leave his/her work place) for the whole period of delay. Legislation introduced in January 2016 provides that during the period of suspension, employees reserve the right to receive their average salary.
Changes in the limitation period for certain labour disputes and choice of jurisdiction; increased liability of employers for salary payment delays
An employee with a claim in relation to the payment of salary, compensation, and benefits now has one year from the day when he/she has learned about a violation to bring a claim. The limitation period for other claims is still one month. A special one month limitation period applies to contesting dismissals.
An employee can choose to file a claim at the place of his/her residence or at the location of the employer.
Fines for employers who fail to make salary payments increased to 1/150 of the Central Bank of Russia’s key rate for the unpaid amount for each day of delay.