The development of modern technologies and the growing role of electronic documents in commercial relations influence the employment sphere, among others. Companies increasingly use electronic employment agreements and electronic policies, which increases the efficiency of employment paperwork turnaround. However, the positions of Russian employment law and the courts on electronic employment documentation are not uniform.
According to Article 6 of Russia’s Federal Law No. 63-FZ on Electronic Signature, dated April 6, 2011, an electronic document signed by a qualified digital signature is considered equal to a manually signed hard copy and can be used unless a hard copy is expressly required by law or regulation. Although the Russian Labor Code does not directly prohibit the use of electronic employment documents, it expressly permits their use only for remote work, which is defined as the performance of a labor function without a permanent work place where the employer and employee communicate with each other on employment-related matters via the Internet. An employment agreement with a remote employee shall provide terms and conditions for electronic document exchange between its parties, regarding, in particular, the use of a qualified digital electronic signature and the sending of receipt confirmation in respect of electronic documents. Parties to remote work agreements shall use only qualified digital electronic signatures, as other types of electronic communication (e.g., e-mails from an authorized e-mail address) cannot ensure the proper identification of a sender.
The Russian courts’ position varies on the use of electronic documents for employment relations not connected with remote work. Russian courts are not unanimous in either permitting or prohibiting electronic employment documents exchange in employment relations. Some courts take the conservative approach and apply the provisions of the Labor Code literally, holding that the its requirement for a written form of a document or for familiarization of an employee with a document per his signature refers only to a hard copy and to manual signature, respectively. Other courts are more liberal in their interpretation of the Labor Code provisions and find either equality between hard copies and properly signed electronic documents or the absence of restrictions on the use of electronic document exchange in the Labor Code.
In the absence of direct provisions prohibiting or allowing the use of electronic documents in employment relations and uniform court practice on this issue, failure to maintain hard copies of employment documents carries a risk of adverse consequences. For example, if an employer and an employee signed only an electronic employment agreement, a Russian regulator or court may conclude that employment relations were not formalized properly and that the employee was admitted to work without an employment agreement. In this case, employment not established on the basis of actual admittance to work and any special arrangements (such as a fixed term of employment or probation period) will become invalid. In addition, an employer may be subject to an administrative fine for the failure to properly conclude an employment agreement, ranging up to RUB 100,000 (approximately USD 1,783) for a legal entity and up to RUB 20,000 (approximately USD 357) for its officers. Additionally, a court or regulator may not accept electronic documents as evidence of facts that they establish and, consequently, an employer may find itself, e.g., in breach of termination procedure and forced to reinstate the dismissed employee.
Russian authorities understand the trend towards electronic document exchange in employment relations and the Russian Ministry of Economic Development has proposed a bill directly qualifying electronic documents in employment relations as documents in written form. According to the bill, an employer and an employee will be able to use digital signatures if the employer adopts a policy to that effect. However, the sphere of electronic employment document exchange remains limited: Employment agreements, apprenticeship agreements, agreements on full material liability, and collective bargaining agreements remain valid only in hard copy; employees may demand the use of paper employment documents instead of electronic ones; and familiarizing new employees with an employer’s policies shall be established by manual (and mutual) signatures. Nonetheless, the bill is a significant step towards state acknowledgement of electronic document exchange in employment relations. The government’s next step should be gradual transfer to electronic employment books.
By Dmitri Nikiforov, Partner, Anna Maximenko, International Counsel, and Elena Klutchareva, Associate, Debevoise & Plimpton Russia
This Article was originally published in Issue 4.6 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
