20.08.2022

IF WE ARE IN A CONFLICT OF INTEREST, WE MAY BE BANNED FROM A SECOND JOB

One of the changes in the labor legislation is the restriction regarding the conclusion of an employment contract for performing additional work at another employer due to the protection of trade secrets and/or the prevention of conflicts of interest. What are the changes in this area?

The amendment is in Art. 111 of the LC.

Until now, the current provision regarding the conclusion of an employment contract for performing additional work at another employer gave the parties the opportunity to conclude an additional employment contract, unless otherwise agreed in the individual employment contract under the employee's main employment relationship, including a complete ban on performing additional work work for another employer.

The amendment to the Labor Code of August 1, 2022 stipulates that a ban on performing additional work at another employer can only be negotiated due to the protection of a trade secret and/or the prevention of a conflict of interest.

The amendment to the law guarantees the right to work for workers, including with another employer, while at the same time taking into account the need to protect the employer's commercial interests and/or prevent conflicts of interest that should be avoided when the worker or employee is working with more than one employer.

However, the Labor Code does not provide definitions of the terms "trade secret" and "conflict of interest". The question then is, how can the employer negotiate this statutory prohibition? In order for the employer to implement the prohibition of parallel employment, it should be borne in mind that it is limited to the requirement not to disclose a trade secret or that the employee does not work for the other employer in a conflict of interest with respect to his work. Therefore, the term "trade secret" should be clearly defined in the Labor Code.

The same applies to the definition of "conflict of interest". The employer does not have such a definition defined in the Labor Code, but may decide to use a definition established in the Law on the Prevention and Detection of Conflict of Interest, where it is said that "A conflict of interest arises when a person holding a public office , has a private interest which may affect the impartial and objective performance of his powers or duties of office'. In this case, however, it is a matter of persons holding a public office, and not parties to an employment relationship.

At the moment, the application of the legal change is in doubt. It is not clear how correct it will be if, when concluding the additional employment contract for work with another employer, the employee's main employment contract contains a clause prohibiting the conclusion of such an additional employment contract due to trade secrets or conflict of interest, without these concepts are deployed and that it is clear what they should contain, since there is no definition for them in the Labor Code.

Reference:

Art. 111 of the Labor Code