Russian employment law: electronic documents to replace paper?

Definition

The new articles 22.1-22.3 Labor Code define EDI as the creation, signature, use and retention of employment documents by employer or employee (including new hires) in electronic form. Subject to some exceptions EDI completely dispenses the parties from the use of paper documents.

The new rules apply to those documents which under employment law would otherwise need to be issued in paper form. Curiously enough, the Labor Code does not require documents to be issued “on paper”, but rather “in writing”. This includes employment contracts and documents such as internal policies which the employee must acknowledge by wet signature to have been notified of.

The Labor Code does not regulate general work-related communications between management and employees not relevant for the application of labor law and does not limit the employer’s discretion to define workflows and procedures for the conduct of its business and the performance by employees of their role within the company.

Principle

EDI must be formally implemented in the company. Employers can do that after 22.11.2021 by issuing a so-called local normative act (such as a company policy) subject to consultations with the employee / labor union representation (if such representation exists within the company). The local normative act must be notified to each individual employee against signature.

The local normative act implementing EDI must have the following mandatory content:

• a definition of the information system used for EDI (see below for permitted options);
• a definition of access procedures to such information system (login, password etc.);
• a list of the categories of documents to which EDI will apply;
• the categories of employees to which EDI will apply;
• the date of implementation of EDI and the time period during which employees will be notified thereof (implementation is possible at the earliest after expiry of the notice period).

The company policy defining EDI procedures (which can be part of the policy implementing EDI) can further:

• define the time of response of the employee to EDI communications taking into account business hours and the ordinary frequency of such communications;
• where necessary provide for employee training in the use of EDI;
• define exceptional cases where it is permitted to issue documents on paper;
• where necessary regulate procedures for communications between employer and the employee / trade union representation or the commission for labor disputes (if these exist in the company).

Opting-In

Written consent must be obtained from each individual employee (both existent employees and future hires). No consent will be required from individuals taking their first job after 31.12.2021. Refusal to provide consent is not a lawful reason not to hire a candidate, nor to terminate employment. The company can implement EDI even if not all staff consents, but employees who have not opted in are still entitled to receive paper documents. It should, however, be sufficient for the employer to print out the electronic document and to certify its authenticity. Obviously, the employer will also need to continue obtaining the employee’s wet signature on paper documents required under employment law (e.g. amendments to employment agreement, notice of receipt of company policies etc.).

The law does not specify whether this written consent must be given on paper with wet signature or can be signed electronically. It therefore seems prudent to opt for the first option.

Opting-Out

The law does not provide the employee with a possibility to withdraw consent earlier provided.

Exceptions

EDI is not permitted:

• with respect to labor booklets (for those employees who did or do not opt for electronic labor records);
• as concerns the order on termination of the employment;
• with respect to labor safety training and the investigation of accidents at the work place.

EDI Options, Electronic Signature and Other Requirements

Employers can choose:

• to use the electronic platform “Work in Russia” (Работа в России – https://trudvsem.ru, which is operated by the Federal Service of Labor and Employment – Rostrud);
• to implement EDI on their own platform (information system) provided their system enables employer and employee to sign and exchange electronic documents and to record delivery to (and receipt by) the addressee.

It is necessary to refer to Federal Law of 27.07.2006 No. 149-FZ “On Information, Information Technologies and Data Protection” for a definition of the term “information system” (combination of the data contained in data bases and of the information technologies and technical tools used to process such data). This apparently excludes, for instance, the exchange of electronic documents by third-party email or messenger services. The law does not specify whether the employer can use a platform provided by a third party other than “Work in Russia”.

The law provides for specific standards for the content and format of documents to be defined by the Ministry of Labor and Social Security in cooperation with the Ministry of Digital Development, Communications and Mass Media and the Federal Archival Agency. These standards should be developed and implemented until 01.03.2023. Before that, employers can define content and format independently, but with the risk that they will need to make adjustments at a later stage.

EDI Documents must be signed electronically (requirements for electronic signatures are defined by Federal Law of 06.04.2011 No. 63-FZ “On Electronic Signature”):

• It should always be possible to use an enhanced qualified digital signature (digital public key certificate issued by an accredited third-party service provider). The Federal Tax Service has recently been authorized as one of the accredited center to issue digital certificates, which may make it easier for employees to obtain and use enhanced qualified digital signatures.
• Subject to certain conditions, it is possible to use an enhanced non-qualified digital signature which can be created either:
  • by the employer’s own information system (an agreement between employer and employee on the use of the signature is required); or
  • by the Unified System of Authentication and Identification (USIA), which is part of the Public Services Portal infrastructure (https://gosuslugi.ru).

It is planned to implement the second option until 01.09.2022, and it should be possible to combine it with the use of either the company’s own information system or the platform “Work in Russia”.

• Employees can also use a simple electronic signature (e.g. login and password) created by USIA or – based on an agreement between employee and employer – by the company information system.

An enhanced qualified digital signature must be used by the employer, and at least an enhanced non-qualified digital signature by the employee to sign the following:

• the employment agreement;
• agreements on material liability;
• apprenticeship contracts;
• contracts for training;
• amendments to the above;
• notice on a change of the terms of employment (respectively, for the employee, acknowledgement of receipt thereof), employee’s consent to a transfer within the company;
• order on disciplinary sanctions (respectively, for the employee, acknowledgement of receipt thereof);
• employee’s notice of termination and its withdrawal.

Other documents can also be signed by an enhanced non-qualified digital signature (if signed by the employer) and by a simple electronic signature (if signed by the employee).

Where documents are interchanged through the platform “Work in Russia”, the employer and employee can also use an enhanced non-qualified digital signature generated by the USIA. Alternatively, the employee can use a simple electronic signature generated by the USIA provided the signature was issued on behalf of the USIA when the employee was physically present and properly identified. We expect the USIA itself to be adjusted in the near future in order to fully accommodate EDI through the platform “Work in Russia” (at present, for instance, companies need an enhanced qualified digital signature to register in the USIA in the first place).

Declarations, notices and communications made by the employee using EDI are deemed to have been received by the employer on the following business day.

The employee can always demand that the employer issue employment documents in paper form based on article 62 Labor Code (if EDI applies, the electronic document must then be printed out and certified as true copy). Such a request can be delivered to the employer on paper or in the form of an electronic document using EDI or simple email.

Document Retention

The information system used must secure the retention of documents during the time periods defined by the legislation on archives (not yet amended).

Personal Data

The new articles 22.1-22.3 Labor Code do not regulate personal data aspects. General requirements (including the requirement to localize data in Russia) apply. The introduction of EDI may require a change to the employment data policy and other documentation regulation data processing.

Special Situations

• Remote working: The amendments to chapter 49.1 Labor Code effective as of 01.01.2021 (chapter on remote working) regulate only communications between the employer and employees working remotely using IT systems, they do not dispense employers from the need to issue employment documents (e.g. company policies) in paper form. EDI can be extended to remote workers, otherwise the provisions on EDI of Chapter 49.1 Labor Code (regulating remote working apply). The latter are in some aspects more flexible and do not require the use of the employer’s information system.
• COVID and other extraordinary situations: Employers can temporarily implement EDI without the employee’s consent. In such situations documents can be exchanged also in the form of an electronic image (PDF or photo of document with hand-written signature), but an original must be provided subsequently.

New Hires

Under the new rules the employment agreement can be signed electronically, but only subject to the employee’s prior written consent, which it is advisable to obtain on paper under the employee’s wet signature.

IMPORTANT: Law No. 377 changes onboarding procedures in general. The basis for onboarding is now the employment agreement and no longer the order on hiring. The employer is no longer required to (but still can) issue an order on hiring. As under previous rules, employment also takes effect if the employee starts working de facto, in which case the employment agreement must be signed within three business days after the employee commenced work in the company.

Disclaimer: Legal advice should always be sought before making decisions. This document is for information only, and we do not accept liability for any decisions made on its basis­­­