In her article published by Labor Disputes journal, Marina Abramova, attorney at law, head of Employment Law department at Andrey Gorodissky & Partners, provides examples of acceptable wording for setting employee’s traveling job regime in employment agreements, points out the difference between lengthy duty travels under traveling job regime and business travels, and explains how and what particular expenses should be reimbursed to employees working under traveling job regime.
What is important when setting traveling job regime
Marina Abramova, attorney at law, head of Employment Law department at Andrey Gorodissky & Partners
Employment agreements. It is important to include a relevant provision in the employment agreements with employees you would like to have working under traveling job regime (Article 57 of Labor Code). It is also advisable to include the employee’s residential address in his/her employment agreement and to define there the territory, such as a particular region (regions) or the entire territory of the Russian Federation, for performance of the employee’s job duties. The employment agreement may also contain a provision that the employee will work at his/her permanent workplace during such time as instructed by the employer or on such days as set forth in the employment agreement.
Subject to employee’s consent, traveling job regime can also be set for employees being ‘persons with family responsibilities’ who, according to Article 259 of Labor Code, may refuse to go on business travels. However, taking into account the government policy trend for support of families with children, I recommend that the territory set for fulfillment of job duties by such employees should allow them to return daily to their place of living. If the employee’s agreement defines a different territory, such provision should be changed upon the employee’s request.
Lengthy duty travels. According to the approach usually followed by Rostrud[1], Mintrud[2] and courts, the employee going on duty travels under traveling job regime should be able to return to home daily (see, e.g. Letters of Mintrud dated October 26, 2022, No. 14-6/ООГ-6714 and dated September 2, 2020 No. 14-2/ООГ-14185). However, there exist some explanations and judicial acts which admit that lengthy duty travels can be made within the territory defined in a relevant agreement. For example, Mintrud in its Letter of December 16, 2022 No. 14-2/ООГ-7839 and Rostrud in its Letter of December 12, 2013 No. 4209-ТЗ do not mention that daily return to home is an element of traveling job regime. To minimize potential disputes, it is advisable that the employer’s local regulations or relevant employment agreements should contain the following or similar wording.
Sample wording for an employment agreement
“Work will be performed by the Employee under traveling job regime in Moscow and the Moscow Region. The Employee’s expenses related to his duty travels will be reimbursed in accordance with the Employer’s local regulations. The Employee’s duty travels, including more than one day-long duty travels, within the territory named in this Section will not be deemed business travels.”
While the employee going on business travels is eligible for average earnings, the employee going on duty travels is paid regular earnings, i.e. the days of such duty travels are paid for as standard working days.
Duty travels and business travels. It depends on the purpose of a travel and a contractual provision defining the territory for performance of the employee’s job duties, whether or not the employee’s travel is to be deemed a business travel. If the employee’s duty assignment is to be fulfilled outside the territory defined in his employment agreement, his travel should be deemed a business travel. Still, business travels can also take place even if the agreement provides for traveling within the entire territory of Russia. The employee’s travel to a different locality will be deemed a business travel if during that period the employee is engaged in dealing with other matters related to his work and not in immediate performance of his job duties. For instance, if the employee works at a branch office located outside the employer’s location, the employee’s travel to the head office to take part in a corporate training event or to sign personnel-related documents will be deemed a business travel. This also applies to travels by remote employees working under traveling job regime to the head office located outside of the locality where the employee lives.
Reimbursement of expenses. Employees should be reimbursed for their traveling and accommodation expenses, additional expenses (daily allowance) associated with the employee’s living outside the permanent place of his living, and other expenses that may be incurred with the employer’s consent or knowledge (Article 168.1 of Labor Code). Jobs, professions, positions of employees for whom traveling job regime can be set should be listed in the same local regulations of the employer.
It is advisable to include a list of expenses, their amounts and the procedure for reimbursement thereof in the employer’s local regulations. Although it is also possible to include them in the employment agreement, the employee can change the terms of its local regulations. In any event, it is important that at least either the agreement or the local regulations provide for specific amounts of reimbursable expenses or a clear mechanism for determining thereof. A provision to the effect that a list and amounts of expenses are to be determined by the employer’s order or similar wording may be rejected by government authorities or courts.
In practice, the question about daily allowance often arises, so I recommend that relevant local regulations or employment agreements should expressly provide that the employer will only pay daily allowance to the employee insofar as the performance of his work requires that the employee live outside his permanent place of living. If the nature of the employee’s assignment and the transport commuting conditions allow him to return daily to his permanent place of living, no daily allowance will be paid.
Source: Labor Disputes (Article available in Russian language)
[1] Federal Labor and Employment Service of the Russian Federation.
[2] Labor Ministry of the Russian Federation.