1. Are non-compete or non-solicitation clauses enforceable under Russian law?
Common law concepts such as post-termination noncompetition clauses, garden leave, and non-solicitation clauses are not recognized either under Russian law or by Russian courts.
Although many employment agreements, especially with key personnel, often provide negative consequences for the employee for violating his/her non-compete or nonsolicitation obligation, these provisions are generally unenforceable. In addition, they can be considered as an infringement on the constitutional principle of freedom of labor (Article 37 of the RF Constitution) and a violation of Russian labor law requirements, which may generally result in the imposition of penalties on the company (up to RUB 100,000) and on its officers (up to RUB 20,000).
2. How can an employer protect confidential information?
A company should ensure that certain information is classified as a commercial secret and oblige its employees to maintain confidentiality of this information – e.g. adopt and implement a commercial secrets policy. Employment agreements should contain non-disclosure obligations. In order to implement the commercial secrets regime, an employer must determine the information that is protected by the commercial secret regime, record the list of individuals who have access to this information, mark documents containing commercial secrets as "confidential", etc. Employees should be notified of the information comprising commercial secrets, the conditions of the commercial secret regime, and liability for its violation.
Covenants on non-disclosure of information comprising commercial secrets are generally enforceable.
3. What liability may an employee face if he/she discloses information comprising a commercial secret?
In the event of disclosure of a commercial secret, the employee may be subject to:
- Civil liability (in the form of damages).
- Disciplinary sanctions.
- Administrative liability.
- Criminal liability.
The employer may claim compensation for the damages caused by an employee (including former employees) for disclosing information comprising commercial secrets during his or her employment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.