The Legal Department of “Berkut” Association (guard company) lights up readers’ questions on the pages of “Your Security” magazine: 

The management of the company wants to make attestation of employees. Are there certain regulations for that?

The Russian Legislation does not bind employers to hold attestation of its employees. None of the Labor Code or other regulatory acts of industry-wide and obligatory character doesn’t specify any employer should periodically check its employees for the professional positions they take.

However, there are exceptions. For example, according to the article 48 of the Federal Law dated 27 July 2004 N 79-Federal Law "On State Civil Service in the Russian Federation" to identify the correspondence of the state employees there should be attestation once in three years. Also according to the Federal Law dated 14 November 2002 N 161-Federal Law "On State and Municipal Unitary Enterprises" there is an obligatory attestation of top managers of unitary enterprises.

Obligatory attestation is established as well by special federal laws in connection with company personnel of certain industries of economic activity (some categories of workers on energy sector, transport, dangerous sites, education and other).

All other cases are subject to the company management decision. No obstacles here for this.

The attestation order can be specified by local regulation acts of companies (art. 8 of the Labour Code of the Russian Federation), collective agreement, and other agreements (art. 9 of the Labour Code of the Russian Federation).

As a rule, attestation order of a company is set by the Attestation constitution of the employer.

The Attestation constitution for workers should contain the following:

• Workers to be attested;
• Period of time the attestation is held;
• Rules on Attestation committee forming;
• Procedure on attestation events;
• Types and decision procedure by the attestation committee.

Workers should be acquainted with the Attestation constitution according to the procedure stated by part 3 art 68 of the Labour Code of the Russian Federation. Also it is desirable to make a reference in the worker labor agreement for the Attestation constitution. In the Labour agreement it should be noted that the worker is subject to attestation according to acting Attestation constitution which is in force in the company. The reference for the Attestation constitution can be included into the worker company daily regulations or worker role description.

The workers subject to attestation are defined by the employer taking into consideration company specifics. In any case, attestation can’t be held in respect of those workers whose duties don’t require special knowledge or experience, for example, office-cleaners, guards). The purpose of the attestation is the checkup of the qualification of employees (i.e. their correspondence with his/her professional knowledge and skills).

The attestation committee is formed to make an attestation with a chairman as a head. If the purpose of the attestation is the checkup for the correspondence of the position taken and as a result of it the worker can be dismissed, the attestation committee also includes a professional from a corresponding trade union (if there one).

If the attestation has another purposes and its results are not supposed to be the reason to dismiss a worker (or other negative consequences for workers), then a professional from trade union isn’t needed (for example, if attestation is held for the purpose of forming additional skilled staff, to upgrade salary level etc.).

Is there responsibility for confidential information (trade secrets) disclosure, if yes, what can be done?

The Civil Code of the Russian Federation specifies that information is considered to be confidential when it has commercial or potential value as it is unknown to any third party and it has no direct access to it on legal grounds and owner is making appropriate measures to save its confidentiality. Materials which can’t be considered as confidential are specified by the law and other legal acts.

The Federal law № 98- Federal law «On Confidential Information» regulates relationships connected with the listing of the confidential information, its transfer, protection for the purpose of providing balance of interest of the owners, and other participants of the relationship including state, market, labour, services and prevention of unfair competition, as well as specifies materials which can’t be considered as confidential information.

Information treated as confidential – scientific, technology, industry, finance or other information (including production secrets (know-how)), which has potential or commercial value as it is unknown to any third party and has no direct access to it on legal grounds, the owner of such information takes protection steps. Contents of accounts and accounting reports are considered to be confidential. 

Infringement of the Federal Law «On Confidential Information» brings disciplinary, civil, administrative or criminal liability according to the legislation of the Russian Federation.

Persons who got confidential information illegally are obliged to compensate damages (loss) caused. 

Employee who got confidential information as part of job and such information is owned by employer, his/her agents, in case of planned or careless unauthorized disclosure is subject to disciplinary responsibility according to the legislation of the Russian Federation if this not a legally defined crime.

According to art.242 of the Labour Code of the Russian Federation the liability for breakage to its full is put the whole blame on this worker only in cases stipulated by the present Code or other federal laws.

Basing on regulations of clause 7 art.243 of Labour Code of the Russian Federation the liability for breakage to its full of the damaged caused is put on the worker who disclosed confidential information (company, commercial, or other) which is protected by the law and stipulated by the federal laws.

At the same time it should be considered that on the basis of the labour legislation the responsibility to protect confidential information can be put to employees only if such condition is included into labour agreement.

According to art.13.14 of the Code on Law Violation the information disclosure the access to which is limited by the federal law (excluding cases, if disclosure of such information brings into criminal responsibility), by a person who got access to such information during his/her work, is sentenced to administrative penalty of the public officers.

Criminal responsibility for disclosure of confidential, tax or banking information is specified according to art.183 Criminal Code of the Russian Federation. In particular, illegal disclosure or utilization of confidential, commercial or banking information materials without consent of their owners who got access to it during work are imposed a penalty with no right to fill certain positions or certain business or imprisonment for up to three years (clause 2 of the article mentioned). The same criminal acts which caused significant damage or committed for the reason of interested motives or entailed serious consequences, imposed a fine according to clauses 3 and 4 of the article mentioned.