What does an ideal employee look like from an employer's point of view?
A portrait can be described for a rather long time, but, ultimately, it all comes down to simple truths:
- Qualified employee
- Who likes to recycle
- Free of course
- At the same time, processing does not mean that the employee does not understand how to solve a particular problem
- Just an employee is very devoted to his company
- And works for years
- And never goes to competitors
We’ll talk about leaving competitors
Every self-respecting employer today considers it his duty when signing an employment contract with an employee to give the latter not only an employment contract for signature, but also a large number of additions to it. And also to acquaint with a bunch of local regulatory legal acts.
These additions include a non-compete agreement (NCA or non-compete clause, NCC) .
As a rule, an employee is charged with such a document with an obligation not to be employed in companies that carry out activities that are identical with the employer (i.e. competitors) during the period of work, as well as at the appointed time after termination of employment . In addition, the employee is prohibited from creating competing organizations, i.e. start your own business in similar areas of activity .
Having received the offer, with direct employment, the employee rarely dictates his own conditions. And a rare person refuses to sign such documents, trying to protect their rights to free labor. And only later, thinking about leaving the employer, the employee begins to remember, and what obligations did he undertake by signing an employment contract? And he is upset, remembering how unfavorable the NCA conditions were for him.
In fact, things are a little different. And the picture for the workers looms quite rosy.
Labor is free
Everyone has the right to freely dispose of their abilities to work, to choose their occupation and profession. Any form of discrimination in the world of work is prohibited, citizens have the right to protection against unemployment. This is evidenced by the Constitution of our country . And this is enough to say: the provisions of the NCA, signed on the territory of the Russian Federation, cannot be applied.
The current Russian legislation does not contain provisions providing for the possibility of concluding non-competition agreements with employees. And any such documents clearly violate the freedom of employees, limiting their right to free labor and choice of occupation.
Employment contracts cannot contain conditions restricting rights or lowering the level of employee guarantees in comparison with labor laws and other regulatory legal acts containing labor law norms. If such conditions are included in the contract, then they are not subject to application.
Federal law and other normative acts do not stipulate that a labor contract with an employee or other document may prohibit an employee’s actions for any period after termination of the employment contract if such actions may lead to adverse consequences for the former employer, including including the employment of the employee for another employer engaged in the same activities in the same area as the previous employer ( Letter of the Ministry of labor and social protection of the Russian Federation October 19, 2017 № 14-2 / B-942 On additional agreement on non-competition ).
Therefore, each employee must remember: such a condition, even if it is included in the employment contract or is contained in a separate document, will not be applied as contrary to labor law and restricting the rights of the employee .
Now we turn to employers
Of course, in their opinion, companies pursue exclusively good goals, trying to impose restrictions on the freedom of workers. For example, NCAs can simultaneously protect:
- valuable company information (trade secret)
- investment in employee training and professional development
- business contacts of the employer, including valuable communications by counterparties
We will not argue. Companies have something to protect. They really should be afraid of leaking important information. But the legal regime for protecting this information must be chosen wisely.
For example, the Labor Code of the Russian Federation provides that the parties are entitled to provide an additional condition in the employment contract for the non-disclosure of secrets protected by law (commercial secrets).
Information constituting a trade secret may be recognized as information of any nature (production, technical, economic, organizational and others), including on the results of intellectual activity in the scientific and technical field, as well as information on methods of professional activity that have actual or potential commercial value due to their unknownness to third parties, to which third parties do not have free access legally and in respect of which the holder x information mode introduced trade secrets.
But this is a topic for a separate publication.