An experiment with the use of electronic documents associated with employment relationships

Pepeliaev Group advises about a planned experiment in the Russian Federation with the use of electronic documents associated with employment relationships

Within the framework of implementation of the “Digital Economy”[1] national programme on 14 April 2020 the State Duma adopted the Federal Law “On conducting an experiment with the use of electronic documents associated with work” (the “Law”). In the near future the Law is expected to be approved by the upper chamber of Parliament and signed by the Russian President.

Within the framework of the experiment, employees and employers are supposed to reject the use of paper documents in employment relationships for which such form is mandatory in accordance with current legislation and which should be signed by the employee’s own signature. The experiment provides that such documents (“Electronic Documents”) can now be formalised in electronic form.

The following goals of experiment were determined:

• the development at the legislative level of mechanisms for introducing and using Electronic Documents, and creating conditions for their use;
• an assessment of how effective the experiment is and preparation of proposals based on the results of the experiment to introduce amendments to the Russian employment legislation with regard to Electronic Documents taking into account all the specifics identified in the course of the conduct of the experiment.

It is planned that the experiment will be held until 31 March 2021 inclusive.

In the course of the experiment employers can in fact move to electronic document flow with employees using email or the Work in Russia system (https://trudvsem.ru).

Within the framework of the experiment Electronic Documents will be signed using electronic signature. The Law provides that employers should always have an enhanced qualified digital signature. And for employees it is permitted to use an enhanced qualified or non-qualified digital signature, and if using the Work in Russia system the employee will be able to sign documents with his/her simple digital signature, a key of which is received in accordance with the rules for the use of a simple electronic signature when applying for state or municipal services in electronic form.

Participation in the experiment is voluntary both for employers and for their employees and candidates. At the same time employees and candidates should express their prior consent to participate in the experiment by filing the corresponding written application with the employer. Subsequently employees and candidates may at any time refuse to participate in the experiment. This means that if an employer participates in the experiment and only a part of the employees express consent to participate in it, the general rules of labour legislation will apply to the remaining part of the employees as it was before.

Please note the following restrictions: (1) remote employees and employees working under the conditions of outstaffing cannot participate in the experiment; (2) the experiment is not held with regard to work record books and information about an employee's labour activity, which is formed electronically in accordance with labour legislation.

An employer that is willing to participate needs, before the experiment begins, to do the following:

• express its willingness to participate in the experiment in accordance with the regulations concerning the procedure for conducting the experiment[2];
• set the date when the experiment starts;
• approve the list of types of Electronic Documents with regard to which the experiment will be conducted;
• if necessary, determine the structural subdivisions of the company which will participate in the experiment;
• · notify[3] each employee and candidate in writing[4] of the conduct of the experiment, and of the right to refuse to participate in the experiment;
• obtain consents of employees and candidates to their participation in the experiment;
• draw up and approve the list of employees participating in the experiment;
• adopt (or amend already adopted) internal regulations of the company in connection with conduct of the experiment, including regulations on the use of an electronic signature and on the processing of Electronic Documents containing personal data;
• familiarise employees and candidates against their signatures (yet in paper form) with the adopted internal regulations that cover relationships in connection with the experiment;
• amend employment agreements and other agreements in connection with participation in the experiment;
• create a specialised information system or ensure that it is possible to use, for the purposes of the experiment, the existing information system;
• ensure that an employee has unimpeded access to Electronic Documents within the framework of the use of the information system;
• ensure that Electronic Documents are protected against unlawful access;

Please note that the employer shall bear all the expenses on the creation, use and storage of Electronic Documents, including expenses on the receipt and use of an employee's electronic signature. The fact that a person being employed has no electronic signature cannot serve as a ground for refusing to enter into an employment agreement with such person.

What to think about and what to do

Companies and individual entrepreneurs that have decided to participate in the experiment are recommended to plan in advance their actions and measures with regard to preparation for and participation in the experiment. A stated goal of the Law is to amend Russian labour legislation based on the results of the experiment so as to provide for the total use of Electronic Documents in employment relationships. Most probably, the procedures provided for by the Law will serve as a ground for the future amendments to labour legislation. For this reason we recommend that companies that have refused to participate in the experiment should monitor information about the course of the experiment from public sources and should take this information into account when planning the business processes of the company.

Help from your adviser

Pepeliaev Group’s lawyers are ready to provide any type of legal support to business with regard to participation in the experiment, preparation of the necessary documents associated with the use of electronic documents both within the company as well as in relationships with its contracting parties, and in resolving any other issues of legal nature.