"Employee verification: limits, legal issues, best practices"
On March 3, a regular meeting of the HSE Compliance Club was held jointly with the Club's partner, the Pepelyaev Group law Firm. The event was held in a mixed format for the first time in recent months. Some of the participants were present in person. The topical topic "Checking employees: limits, legal problems, best practices" was discussed.
The meeting was modeled by Dina Krylova, Head of the HSE Anti-Corruption Policy Design and Training Laboratory, Public Ombudsman for the Protection of Entrepreneurs' Rights in the Field of Anti-Corruption, expert of the Council of Europe, and Sergey Taut, lawyer, expert of the Pepelyaev Group, Deputy Head of the HSE Anti-Corruption Policy Design and Training Laboratory.
Sergey Pepelyaev, Managing Partner of Pepelyaev Group, Scientific Director of the Master's program of the HSE Faculty of Law "Compliance and Prevention of Legal Risks in the Corporate, Public and Non-Profit Sector", Alexander Rusetsky, Deputy Director General for Compliance of the Autonomous Non-Profit Organization "Moscow Directorate of Transport Services" and Nikita Tuguchev addressed the participants with a welcoming speech, Deputy Head of the Anti-Corruption Policy Department in the Civil Service and Organizations of the Department of State Policy in the Field of State and Municipal Service, Anti-Corruption of the Ministry of Labor of the Russian Federation.
In his address to the members of the Club, Sergey Pepelyaev welcomed the participants and noted the importance and relevance of the topic under discussion, which presents a certain legal complexity. Sergey also noted the need to introduce digital compliance in organizations.
Alexander Rusetsky noted the importance of broad-profile specialists in compliance. And he stressed that there are certain nuances when conducting employee security checks, especially when they are in the office intermittently. When conducting inspections, the best practices are of great importance, as well as the qualifications of the specialists themselves. He also noted that in order to conduct inspections, it is necessary to attract the best specialists with a high level of qualification and training.
Nikita Tuguchev stressed the need to respect the rights of employees when conducting inspections against them. He also noted that the mechanisms for conducting inspections should be legal and adequate. Currently, there are gaps in the law. The Ministry of Labor of Russia is interested in finding ways to eliminate them, as well as in further development of compliance in organizations.
Sergey Taut, the lawyer, expert of the Pepelyaev Group, deputy head of the HSE Anti-Corruption Policy Design and Training Laboratory, in his message "Directions of compliance verification of employees", spoke about the directions of employee verification. As a rule, this is a check at the "entrance" when an employee just comes to work in the organization and a permanent check when he already performs his work functions. Sergey told how and in what directions the check is carried out "at the entrance", which sources of information are used. The verification of the employee's performance of labor functions includes an assessment of the employee's compliance with legislation, local regulations, as well as how he interacts with contractors. Sergey also informed about the peculiarities of using a polygraph in the activities of commercial organizations, which is not regulated by law in any way.
Eduard Ivanov, Holder of an Advanced Doctorate in Juridical Sciences, Full Professor, Academic Director of the Master's program "Compliance and Prevention of Legal risks in the Corporate, public and non-profit Sector" of the Faculty of Law of the Higher School of Economics, made a presentation on the topic "Identification of a conflict of interest", in which he told the Club participants about the specifics of conducting an audit and identifying a possible conflict of interest. Eduard paid special attention to the need to complete all verification activities before hiring a potential employee. The verification should be carried out using available resources, such as social networks and media publications. This is necessary to identify a hidden conflict of interest. Eduard also noted that there are currently no mandatory checks for members of the boards of directors of companies. But there are international standards in the field of compliance that recommend that members of the boards of directors declare their income and property. And this is primarily a matter of the company's internal policy and legislative regulation.
Alexander Hegai, an expert on legal compliance and business ethics, told the participant about the compliance aspects of employee verification. In his speech, he focused on the impossibility of using illegal methods during inspections. As an example, he cited listening to corporate telephone conversations carried out from corporate numbers and reading corporate e-mail. The illegality of wiretapping is beyond doubt. The Organization does not have the authority to do this. While it is possible to check the email of employees, there is no unambiguous solution. On the one hand, it is impossible to do this without the consent of the employee himself, on the other hand, it can be done because e-mail is the property of the company itself. As an argument, Alexander cited the decisions of two different courts.
Artem Tsirin, Ph.D. of Juridical Sciences, Acting Head of the Anti-Corruption Methodology Department of ISPI, Secretary of the Bureau of the Interdisciplinary Council for the Coordination of Scientific and Educational Support for Anti-Corruption, told the Club participants about new legal anti-corruption standards, in particular about new anti-corruption bans. The Federal law from March 1 of this year establishes that digital currency is recognized as property and information about its availability and acquisition must be provided in accordance with the established procedure. And certain categories of individuals will have to report on all their transactions with digital currencies if the total amount of transactions exceeds the family income over the past 3 years. Cryptocurrency can also be the subject of a bribe.
Maxim Vavilov, Commercial Director of the Transparent Deal project, reasoned with the participants on whether it makes sense to switch from manual checks to automated ones and came to the conclusion that this problem should be looked at purely individually and, first of all, based on the interests of the company itself. Nevertheless, he noted that the larger the company, the greater the degree of automation of the verification process required. Including in the field of compliance. Automation of checks can be useful in the case of routine, manual work, which is carried out according to a certain algorithm and there is a high degree of error.
Dmitry Zykov, Head of the Legal Protection of Information practice of Pepelyaev Group, his speech concerned the verification of corporate e-mail, which may contain personal information (personal correspondence, personal photos) employee and which cannot be collected and distributed. Violation of the secrecy of correspondence entails liability in accordance with criminal law. Therefore, Dmitry recommends not to use corporate email verification as a way to check employees and look for more legal ways. He also urged everyone present to think about how to "properly" use corporate mail.