Unfortunately, not everything that is legal is ethical, and not everything that is unethical is illegal. Let's talk about the issues of working in a company at the edge of law and ethics: 1. Recruitment. Is it legal to ask about the babyplanning when hiring? Can one put specific requirements in vacancies? 2. Confidentiality. We all sign NDAs, but to what extent is this a working tool? Are there real cases of bringing an employee to responsibility for disclosing confidential information? 3. Being employed by competitor. Many employment contracts include a so-called non compete clause and prohibit former employees from opening their own companies or moving to work for competitors. How legal is it? 4. Personal data. How to ethically use the employee's personal data?

1. Law and ethics: legal opinion on
cases between companies and
employees
Alina Davletshina
Senior Lawyer, Versus.legal
Unfortunately, not everything that is legal is ethical, and not
everything that is unethical is illegal. Let's talk about the issues
of working in a company at the edge of law and ethics.

2. Topics to discuss
1. In matters of recruitment. Is it legal to ask about the babyplanning when hiring?
Can one put specific requirements in vacancies?
2. In matters of confidentiality. We all sign NDAs, but to what extent is this a working
tool? Are there real cases of bringing an employee to responsibility for disclosing
confidential information?
3. In matters of being employed by competitor. Many employment contracts include a
so-called non-compete clause and prohibit former employees from opening their
own companies or moving to work for competitors. How legal is it?
4. In matters of personal data. When it is fine to use employee’s personal data?

3. When there is and there is not discrimination
The established requirements and restrictions
are not related to the business qualities of the
employee or candidate
Information on illegal actions at the previous
place of work allows to assess the business
qualities of the candidate
Existence of a causal link between
discriminatory grounds and refusal to hire or
dismiss
Employer can indicate its preference (age,
gender) in vacancy but can’t refuse candidates
who don’t fit that
There is discrimination There is not discrimination

4. Discrimination at work
Recruitment discrimination: what requirements can’t be included in vacancies
No pregnancy
Education from preferred “top”
university
Having your own car, PC,
smartphone or tablet
Lack of bad habits (smoking,
drinking alcohol)
Military service experience
No disabilities (due to no
proper conditions in the
workspace including ramps
and lifts)
Not having an active civic
position

5. Discrimination at work
Employment discrimination: what is prohibited once you are hired
Non-accrual of bonuses for a
certain category of employees
within the same organization
Requiring consent to the
processing of personal data in
order to receive benefits
Decrease in salary due to the
height or weight of the
employee
Removal of a position in one
branch due to personal dislike
of an employee, but retaining a
position in another branch
Tightening of working
conditions due to the
participation of an employee
in a trade union

6. Harassment as a form of discrimination
Harassment is an undesirable behavior of a sexual nature that is aimed at or infringes upon one's dignity
and creates an intimidating, hostile, degrading or offensive environment (legal definition in Georgia).
A common problem for the CIS countries: the law provides for liability for coercion to acts of a sexual
nature, but the law enforcement system remains critical of evidence.
Direct hints to enter into an intimate relationship, including demonstration of genitals
Indirect hints to enter into an intimate relationship (“beautiful girls need to be friends
with their boss”)
Moral humiliation, derogatory statements about personal and business qualities,
including in the presence of other employees
Pressure by work that is not part of the employee's job responsibilities

7. NDAs and issues of confidentiality
NDA is an instrument of labor law, but not civil law. The indication of the exact amount in the NDA as a penalty
does not give the employer the right to recover this particular amount in case the employee discloses
confidential information. Only direct actual damage can be claimed for recovery from the employee.
There must be a causal link between the employee's actions related to the disclosure of confidential
information and the damage caused to the employer.
Example (Russia): the fact that the ex-employee's competing enterprise carries out the same activities as
the employer's does not indicate the disclosure of commercial secrets.
Example (Ukraine): there was a disclosure of confidential information through the creation of a competing
enterprise by an ex-employee.
A confidentiality regime should be established in relation to confidential information. Only information that is
not available to the public can be protected by the confidentiality regime.
Documents containing commercial secrets must be properly executed and classified. Otherwise, the
employee does not have an obligation to not disclose such information. Shall be marked "Strictly
confidential" in the document.

8. NCAs and issues of competition
The Ministry of Labor and Social Protection of the
Russian Federation considers the NCA as an
instrument of labor relations. Even if the non-
competition clause is included in the
employment contract, it will not be applied as
contrary to labor law and restricting the rights
of the employee.
In the practice of the CIS, there is no common understanding of the legal nature of the agreement.
The conclusion of the NCA is a legal form of
agreement between the parties to ensure a
regime of limited access to confidential
information. Since the object of NCAs is
information, the NCA is civil contract and is
evaluated based on the principle of freedom of
contract and general principles of civil law.
Civil nature Labor nature
From establishing whether the NCA is civil or labor depends the enforcement of the NCA after the
termination of the employment relationship.
The NCA is valid after the termination of the
employment contract
The NCA are invalid after the termination of the
employment contract

9. NCAs and issues of competition
Belarus: Only residents of the Park of High Technologies can sign the NCA, and such an agreement will
be considered civil.
Ukraine: NCAs violate a person's right to work, freedom of further entrepreneurial activity and
freedom of contract, they must be considered illegal.
Lithuania: The company is obliged to establish adequate compensation for non-competition. An
agreement may not be concluded with any employee, but only with an employee, whose dismissal can
provoke serious losses for the company. Restrictions on work cannot be absolute, and the NCA must
specify the specific prohibited activity. The NCA must be limited to a specific territory and cannot be
applied to the entire country as a whole.
France: The NCA is legal only if it is necessary to protect the legitimate interests of the company,
takes into account the specifics of the employee's work and includes the employer's obligation to
pay the employee financial compensation. If the NCA does not include financial compensation, it is
illegal.

10. Personal data
Legal and ethical use of personal
data
Legal but not ethical use of personal
data
Video recording of the work process is not a
disclosure of the employee's personal data,
since it is carried out for purposes related to
the employee's work activities. Employees
must be made aware of the video
surveillance, and it is conducted openly.
Providing information about the health
status of an employee to a doctor without
notifying the employee about it. The personal
data transferred to the doctor is protected
by medical confidentiality.
Sending letters by the bankruptcy
administrator with the personal data of the
employee of the bankrupt organization to
various organizations is necessary for the
purposes of justice.
The admission to the business center is
carried is arranged for ensuring security. In
this connection, the transfer of the
employee's personal data to the company
that issues passes for the employee to go to
his workplace does not violate the
employee's rights. Obtaining the consent of
the subject of personal data is not required.

11. Personal data
Illegal use of personal data
Posting an article on the Internet, which contains information from additional agreement
to the employment contract with the employee's personal data as an illustration.
The personal data of the redundant employee was posted on the wall at the entrance to
the organization's territory, so that the redundant could not get into the territory without
an accompanying person.
As a result of the actions of one of the employees, the personal data of the remaining
employees fell into the possession of third parties. The employer is held liable for
subsidiary liability because he did not provide adequate control over access to employee’s
data.

12. Alina Davletshina
LLM, Senior Lawyer Versus.legal
davletshina@versus.legal
+ 7 (981) 108-27-86
@Alinadavletshina