Employees

monitoring

Legal issues

Concorde

Desktop is screened each 5-10 min

IT & Media

Juscutum is the only law firm in Ukraine to specialize in technology law from its first days.

Apart of standard legal services, Juscutum has specific expertise in the following areas of the ITbusiness:

• Legal support of IT outsourcing,• Assistance with obtaining licenses for the sale of double-purpose goods and services,• Patent and copyright litigation,• Handling of incoming and outgoing DMCA flow,• Copyright clearance for media and IT products,• Due-diligence and legal assistance in M&A deals,• Creating and lobbying draft regulation in the area of IP, IT and media.

“These guys are fast, smart and creative. And they also support the IT industry by drafting and

lobbying crucial regulation.”

Roman Khmil, Ciklum

Our Clients

We have clients in Ukraine and in other countries of the world, including Georgia, Russia, USA,France, Switzerland, Denmark, The Netherlands. We provide legal services to companies fromthe Ukraine’s IT Top 5 as well as to a myriad of smaller companies. Here are some of our clients:

“Juscutum definitely has their own way of doing things. You basically never have to ask for non-

standard solutions.”

Ruslan Synytsky, Jelastic

Membership

We are active members of a number of Ukrainian technology associations:

• Internet Association of Ukraine – a non-for-profit organization, uniting Internet-Service Providers and data-centers and

• Association of Information Technology Enterprises – a non-for-profit organization of software developers,

• IT committee of the European Business Association, and• Cyber-Crimes working group of the Independent

Association on Ukrainian Banks.

“There are very few law firms in Ukraine which can do legal work for ISP’s and simultaneously

understand what exactly they do. Juscutum is one of those”

Tetyana Popova, InAU

Member of WITL

World IT Lawyers is an established global alliance of member firms that share a common aspiration to provide the best service to clients throughout the world, in the full spectrum of IT law.

Through recommending expert lawyers with strong international connections we are able to provide an array of services that one firm alone may not have the capacity to do.

http://www.worlditlawyers.com/

“Juscutum is our newest member. They are experienced in technology and telecommunications

industries and provide high standards of legal service”

Louise de Gier, WITL

Our offices

Although our headquarter is situated in Kyiv, the capital of Ukraine, we also operate in all biggest centers of software development: we have a branch in Lviv and a network of partners (‘best friends’) in Kharkiv and Odessa.

Each third employee believes that his employer spiesafter him.

12% employees reports, that they had problems afteremployer read their working correspondence

Half of all 5000+ companies monitor their employees

Only 30% of employees worry of the monitoring

The higher salary is, the more employer worry aboutmonitoring

Some statistics (HeadHunter)

60+% believes, that it is normal to spy after employees

20% like that they are monitored/spied

More statistics

When employer start worrying

What we afraid of?

Control productivity

Non-competition clause in the contract

Non-solicitation clause

Disclosure of confidential information

Human nature to control everything

Case – non-solicitation

Тут Діма на пальцях пояснює про умови контракту із підрядниками в одного свого Клієнта – ІТ компанії

• Monitoring of the Internet usage

• GPS

• Software spies

• Filtering e-mails

• Tracing social media

• Recording phone calls

• Video recording

How we control employees

allows to monitor all activities on company computers and prevent the

unauthorized distribution of sensitive corporate information

e.g.

Is it legal?

Electronic Communications Privacy Act of 1986

Business Exception: There is a business exception that allows an employer to monitor employee use of its own systems for “legitimate business needs.” This includes improving customer service, preventing harassment and making sure that people are actually working.

Consent to Monitoring: If one party to the communication consents to the monitoring, then monitoring is permitted even if the business exception does not apply. “Consent” requires the employer to give advance notice of its policy to monitor—it does not require the employees to agree. Consent is implied from the fact that they learned about the policy and decided to keep working there.

Employer Owned Systems: The owner of the email, IM and phone message systems is also allowed to access the communications even if they are personal.

Limitations on Employer Monitoring: No continuous monitoring. If the call is obviously personal, the employer has to stop listening. However, the employee can still be disciplined for making personal calls on company time.

Is it legal?

In Sitton v. Print Direction, Inc. (Georgia, September 2011), an employer did not violate an employee’s privacy rights by accessing an employee’s personal laptop to print out personal email messages. The employee had been using his personal laptop at work to help his wife run their printing business. The boss came into the employee’s office and saw the computer screen that had a non-work email open. Both the trial court and the court of appeal found that the

employer had a legitimate interest in investigating whether or not the employee was running another business from the employer’s worksite on the employer’s time and found that printing out the emails was proper. The employee had to pay the employer damages for breach of the duty of loyalty.

Is it legal?

Computer Hacking Laws.

Using employee passwords to sign-in to their personal or social media accounts can violate state and federal computer hacking laws and constitute identity theft.

All 50 states have laws that prohibit someone from unauthorized access to another person’s computer and online accounts, especially if the intent is to change or modify access or content. This would include deleting an inappropriate post.

In Pietrylo v. Hillstone Restaurant Group (New Jersey 2009), two employees set up

a password protected MySpace account where employees could vent about

working at the restaurant. A manger got a hold of the password and logged into the site to discover disparaging and sexual remarks about management and references to illegal drugs. The restaurant fired the employees who sued under

the computer hacking laws. The court found for the employees because the restaurant’s employee monitoring policy did not extent to private online communications on a social network outside of work.

Is it legal?

Computer Hacking Laws.

Using employee passwords to sign-in to their personal or social media accounts can violate state and federal computer hacking laws and constitute identity theft.

All 50 states have laws that prohibit someone from unauthorized access to another person’s computer and online accounts, especially if the intent is to change or modify access or content. This would include deleting an inappropriate post.

In Pietrylo v. Hillstone Restaurant Group (New Jersey 2009), two employees set up

a password protected MySpace account where employees could vent about

working at the restaurant. A manger got a hold of the password and logged into the site to discover disparaging and sexual remarks about management and references to illegal drugs. The restaurant fired the employees who sued under

the computer hacking laws. The court found for the employees because the restaurant’s employee monitoring policy did not extent to private online communications on a social network outside of work.

# шотамухохлов

Employee: must (a) work and (b) act in line with internal rules.

Employer: must (a) make a working place (b) pay and (c) draft internal rules.

Labor legislation

Constitution of Ukraine

Стаття 31. Кожному гарантується таємниця листування, телефонних розмов, телеграфної та іншої кореспонденції.

Винятки можуть бути встановлені лише судом у випадках, передбачених законом, з метою запобігти злочинові чи з'ясувати істину під час розслідування кримінальної справи, якщо іншими способами одержати інформацію неможливо.

Стаття 32. Ніхто не може зазнавати втручання в його особисте і сімейне життя, крім випадків, передбачених Конституцією України.

Не допускається збирання, зберігання, використання та поширення

конфіденційної інформації про особу без її згоди, крім випадків, визначених законом, і лише в інтересах національної безпеки, економічного добробуту та прав людини.

Does it mean, we cannot spy after employee?

Contract matters

Right to monitor e-mail / social media / sms / skype

Right to record phone calls

Right to video recording in the office

Right to use recordings in the court + right to use logs

Any exceptions?

Prevention of crime

No right in the contract needed (but still better to have such)

Attorney, doctor

In Stengart v. Loving Care Agency, Inc. (New Jersey 2010) an employee emailed

her lawyer on a company laptop, but through her personal password protected Yahoo account. The court held the emails were protected by the attorney client privilege, but did not really address the privacy issue.

but

- In Holmes v. Petrovich Development Company LLC (California 2011) an employee

contacted her attorney on a company computer with a company email account. The court found the emails were NOT protected by either a right of privacy or the attorney client privilege. Using the company account and system waived the privilege, and company policies precluded any expectation of privacy. The employer had issued policies that company machines could only be used for business and gave notice that employees had no rights of privacy in their use of company equipment.

1. Разграничивайте личную информацию и служебную.

2. Используйте средства контроля прозрачно.

3. Руководитель должен управлять предприятием, а не выслеживать своихподчинённых.

4. Руководитель обязан осознавать, что неправомерное использование личнойинформации преследуется по закону (и это как минимум не этично).

5. Умышленный тайный сбор личной информации сотрудника — незаконен.

6. Таким образом, при юридически грамотном подходе, проблемы виспользовании таких программ нет. Просто нужно уметь находитьправильные решения и закреплять их во взаимовыгодных соглашениях.

Итого