Russia Overview – Employment

25.04.2014

Chambers and Partners

Contributed by Goltsblat BLP

2013 was notable on many counts, being a year of ongoing employment and immigration developments. A number of government initiatives contributed to this, several of which were initially triggered by business interests. Some of these developments were extremely positive for business, helping to support a balance between employees' and employers’ interests and to increase the flexibility of the labour market. Conversely, other developments in 2013 were strongly connected with politics and resulted in negative consequences for business and widespread frustration.

In terms of positive labour-legislative developments, 2013 commenced with the introduction of the long-awaited concept of distance (remote) employees. Previously, the concept of a remote employee had a heavy emphasis on handicrafts and was connected with all the usual employer’s obligations connected with paperwork, unclear labour safety requirements, etc. The new concept almost meets contemporary business needs and helps fit the employee’s actual relations and actual working conditions into a correct and straightforward legal pattern. In particular, the contract with the employee can say that the employee works from home and, by entering into such an arrangement with the employee, the employer may simplify the communications with, inter alia, field-based employees (especially sales), eliminate some of the huge post-Soviet paperwork requirements, establish additional grounds for terminating employment and also alleviate the burden of most labour safety requirements. This development, in our view, definitely helps the company arrange its labour force, relevant costs (office, equipment), etc. more efficiently.

Apart from these positive legislative developments, some frustrating changes were made to immigration legislation and certain impractical legislative provisions started to apply. Additional obligations for the employer to submit various notifications regarding the employment of foreigners (including highly qualified specialists) were established and the liability for failure to notify the relevant authorities of the employment of foreign specialists was strengthened. Additionally the grounds for denying entry was broadened.

The amendments introduced last summer established increased liability for infringing the immigration legislation in certain regions. Administrative fines applicable to foreigners and companies in Moscow, St Petersburg and the Moscow and the Leningrad Regions have gone up compared to other regions of Russia.

The other significant new development is liability in the form of the mandatory expulsion of foreign citizens from Russia for committing administrative offences in certain specified territories. If a foreign citizen commits an administrative offence in the immigration sphere in the given regions (e.g. is present without notifying of his/her arrival, if such notice is required; is found guilty of inconsistency between the purpose of entry and actual activities performed (work on the basis of a business visa); the foreigner’s visa has expired (even by one day), etc.), the court will be obliged to adopt a decision to expel such a foreign citizen from Russia and impose a fine. Previously, the court enjoyed some leeway in that it could decide only to impose a fine. Now, for these offences committed in Moscow, St Petersburg and the Moscow and the Leningrad Regions, the court is required to adopt a decision on the foreigner’s expulsion. The consequence of expulsion is that the foreign citizen will not be able to enter Russia for five years.

The rules governing entry into and departure from Russia have also been amended. Although the changes might seem technical and introduce no substantial developments, they have triggered the implementation in practice of already existing provisions. Since the amendments came into force, the immigration authorities have started making extensive use of the ability to refuse entry to Russia to foreigners who have been held liable twice or more for committing any administrative offence within the last three years. According to the new approach, foreign individuals may be refused entry into Russia if they have been held liable even for minor administrative offences, such as parking infringements, exceeding the speed limit, and so on.

Along with these legislative developments, new significant clarifications were issued by the Supreme Court. One of the most remarkable clarifications relates to the definition of “single mother”. Previously, the legislation did not define “single mother” and, in practice, courts used to consider a “single woman raising a child” as one who did not indicate the father of the child on the child’s birth certificate or a woman raising a child if the father had been deprived of his paternal rights or had died. A divorced woman or a woman abandoned by the father of her child (where a father is still indicated on the child’s birth certificate) was not considered to be “single” and did not fall under the category of protected employees.

Now the Supreme Court has moved the emphasis from the formal aspect to the woman’s actual situation and her raising a child. It has clarified that, if a woman is in fact raising a child alone without any support (because of the father’s death, imprisonment, sickness, disability and - crucially - other cases), she is a “single” mother. By doing this, the court has created some uncertainty in the treatment of unmarried women (or a woman with a civil partner) with children and the occasional situation when the employer may need to interfere in the female employee’s private life.

The general picture concerning the relations between employees and employers in 2013 was quite stable and there was no significant increase in the number of lawsuits filed by employees against their (former) employers. The situation did not, therefore, change dramatically compared to the previous year.

It may also be noted that the old discussion between the business community, the government and supporters of employee rights concerning the development of a legislative initiative to prohibit/regulate contract labour continued during 2013 and is still going on. We are quite sure that this important discussion regarding contract labour will continue during 2014, alongside other initiatives to modernise the employment legislation, but the outcome of these discussions is yet unknown.

http://www.chambersandpartners.com/180/23/Editorial/7/1

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