LABOUR AND COMPLIANCE

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ABOUT US

Sayenko Kharenko enjoys global reputation as a leading Ukrainian transactional and dispute resolution law firm. We specialize in complex cross-border and local matters and regularly handle the largest and most challenging projects involving Ukraine, including in the following areas:

Antitrust/Competition

Banking and Finance

Bankruptcy and Restructuring

Capital Markets

Corporate and M&A

Corporate Security

Government Relations (GR)

Intellectual Property

International Arbitration

International Trade

Labour and Compliance

Litigation

Private Wealth Management

Real Estate

Taxation

We have introduced many new products in Ukraine, especially in finance and capital markets, and have significantly contributed to the development of many markets and industries. Our clients especially value our practical and innovative approach and our ability to deeply understand and help achieve their strategic and business goals.

This has helped us become the preferred legal counsel for many of the largest multinational corporations, banks and other financial institutions, including Fortune 500 companies, industrial groups, international public organizations, and individual business owners.

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OUR SERVICES

Sayenko Kharenko labour/employment team specializes in all areas of labour and employment law. In cooperation with experts of our compliance team, it provides a wide range of legal services to address the clients’ needs, including:

drafting sophisticated employment agreements/contracts, job descriptions, and other related documentation for CEOs, top management and other staff, as well as internal personnel policies and procedures, and collective bargaining agreements;

developing local corporate data protection legislation compliance programs and preparing data protection policies and respective template employment agreement provisions and other data protection documentation;

developing state-of-the-art compliance programs and anti-corruption rules implementation plans so they meet major requirements of the multinational groups affected by the U.S. Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act 2010 (UKBA), while being adjusted to the Ukrainian regulatory, employment and business environment;

complex, know-how employee dismissals, including those caused by FCPA/UKBA/Ukrainian anti-corruption legislation related violations by top management of Ukrainian subsidiaries of multinational companies;

advising on redundancies and mass layoffs due to employer’s liquidation or business restructuring;

advising on engaging foreign secondees by Ukrainian companies and sending Ukrainian employees on secondment abroad;

advising on employment and immigration law issues, and all other aspects of engaging foreign labour, including within the framework of the services agreements between the Ukrainian company and the foreign service provider entity;

obtaining work permits and service cards for foreign employees and assisting them with various immigration law issues (e.g., obtaining D-type visas, temporary residence permits, permanent residence permits, etc.);

advising on the specifics of Ukrainian workplace health and safety regulation, conducting due-diligence reviews of Ukrainian targets’ compliance with Ukrainian labour safety legislation, developing sophisticated labour safety policies and procedures, and adjusting global corporate workplace health and safety policies to Ukrainian legislation;

developing provisions of the Ukrainian companies’ constituent documents and other corporate documentation to implement anti-corruption compliance programs at the corporate level;

developing standard anti-corruption clauses to be included in employment agreements (contracts), job descriptions and other internal documents of Ukrainian companies to implement anti-corruption compliance programs at the employment level;

labour/employment law compliance audits;

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advising on various aspects of the third party anti-corruption compliance due diligence conducted based on the FCPA/UKBA/Ukrainian anti-corruption laws;

developing personal data protection and anti-corruption clauses to be included in third party contracts and negotiating such clauses with third parties;

due diligence reviews of labour law and labour law related liabilities in corporate acquisitions (including assessment of Ukrainian targets’ compliance with privacy/data protection laws and FCPA/UKBA /Ukrainian anti-corruption legislation);

compensation and benefits, including executive compensation issues;

disciplinary actions;

all aspects of advising on trade union regulation and other employees’ representation matters, including consulting on global trade union activities and their implications on Ukrainian employers;

advising on employing interns and temporary employees;

advising on HR record retention issues;

consulting on implementing ‘do not hire’ global policies in Ukrainian subsidiaries;

adjusting global employee references release procedures to the Ukrainian data protection legislation;

advising on military service and mobilization laws implications on employers;

developing sophisticated internal regulations and related documents on protecting confidential information and commercial secret, in particular of companies subject to mandatory disclosure of public information;

consulting on various aspects of the multijurisdictional employee transfers, including developing such transfers algorithms;

advising on the personnel outsourcing, including on relevant cross-border issues;

advising on the equal employment opportunities policies and procedures, including on bringing the global corporate anti-discrimination policies and procedures in compliance with applicable Ukrainian laws;

consulting on specifics of employing people with disabilities;

representing clients in disputes with trade unions, including in labour disputes commission, court and mediation procedure; and

litigation and other dispute settlement, including employment mediation.

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WHAT MAKES US UNIQUE

Sayenko Kharenko is the only law firm in Ukraine to have labour and compliance practice, which emerged from the firms’ labour and employment practice and its niche privacy/data protection and anti-corruption/anti-bribery practice groups.

Our labour and compliance practice is headed by an internationally recognized expert in all of the above areas of law. This allows us to handle simultaneously multiple projects, including large compliance projects requiring combined legal advice from the experts of our labour/employment, privacy/data protection and anti-corruption/anti-bribery practice groups.

We widely use mediation and the mediation method, tools and techniques to amicably and confidentially resolve labour and compliance disputes, including those arising in respect of complex dismissals for violations of the FCPA/UKBA/Ukrainian anti-corruption legislation.

Our labour and compliance team is recognized for their business oriented, state-of-the-art and user-friendly approach to all matters.

The team’s mission is raising standards in serving consumers of the labour/employment law and compliance advice by providing legal services of outstanding quality efficiently and professionally, striving to meet clients’ business needs.

Our motto is working together with a client in developing workable solutions to identified legal issues.

Sayenko Kharenko advises an impressive pool of international clients on the Ukrainian labour/employment law issues and compliance matters (including Aker Yards, Commerzbank, Ferrexpo, Filasa International, Greif, HSBC, Lafarge, Morgan Stanley, Philip Morris Ukraine, Piraeus Bank, Platinum Bank, Reckitt Benckiser, Société Générale S.A., TUI Travel PLC, UBS, UniCredit Group, Visa, and Western Union).

Svitlana Kheda, counsel heading the firm’s labour and compliance practice is an internationally recognized expert in labour/employment, privacy/data protection and anti-corruption/anti-bribery areas of law. She is recommended as one of the best lawyers in Ukraine by Ukrainian Law Firms 2014, Chambers Europe 2014, Best Lawyers International 2014, and the all-Ukrainian survey Client’s Choice. TOP-100 Lawyers in Ukraine 2012–2013. Ms. Kheda is a certified mediator experienced in employment mediation and internationally known champion of mediation development in Ukraine.

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LABOUR AND EMPLOYMENT

Sayenko Kharenko’s labour and employment law practice is one of the leading and largest in Ukraine, which allows us to handle multiple projects simultaneously. We go beyond the traditional scope of the labour/employment law integrating various employment related topics in our labour and employment practice. The firm’s labour and employment team closely follows the global employment law development trends, such as global trade union activities and equal employment opportunities. Our special focus in 2014–2015 is implications of the recently amended military service and mobilization laws on the Ukrainian employers.

Realizing that the Ukrainian labour/employment law, unlike many other areas of law, is highly dependent on the legal scholars’ commentaries and law interpretations, we build our team around the requirement of combining vast practical experience in handling the most sophisticated employment matters with profound theoretical knowledge of the labour law, which is rare on the legal market.

We are known for our innovative approach to all matters, from the complex know-how dismissals (including for violating the FCPA/UKBA/Ukrainian anti-corruption legislation provisions) to developing sophisticated corporate policies, regulations and other documents in the employment area.

We develop comprehensive implementation plans for the corporate policies and regulations (including those based on the global documents) to be user-friendly and digestible for all employees of Ukrainian subsidiaries, including blue-collar workers. We use our expertise in personal data protection and anti-corruption areas as a workable tool for taking disciplinary actions against non-performing employees, including dismissals.

We support our litigation practice team throughout the entire process of litigating labour disputes. This cooperation results in the remarkable number of disputes resolved in favour of our clients. Notwithstanding our success in litigating various complex labour disputes, we believe in amicable dispute settlement and represent our clients in mediation proceedings. Some lawyers in our team are certified to sit as mediators and are experienced in employment mediation.

Svitlana Kheda, counsel heading our labour and employment practice group is an internationally recognized expert in the field with over 17 years of experience in this area of law. She is named as one of Top 2 labour law lawyers, according to Ukrainian Law Firms 2014, and recommended as one of the best labour law lawyers in Ukraine by Chambers Europe 2014, Best Lawyers International 2014 and the all-Ukrainian survey Client’s Choice. TOP-100 Lawyers in Ukraine 2012–2013. Svitlana is also a certified mediator at the Ukrainian Mediation Centre, experienced in employment mediation. She is a member of the IBA, Employment and Industrial Relations Law Committee and Council of the Employment Law Committee of the Ukrainian Bar Association. Svitlana speaks and publishes extensively (in Ukraine and abroad) on the topical labour/employment law issues. Ms. Kheda is an exclusive permanent author of the chapter on Ukraine published in The Employment Law Review, providing an overview of the labour and employment legislation in over 50 jurisdictions.

We are known for our innovative approach to all matters, from the complex know-how dismissals (including for violating the FCPA/UKBA/Ukrainian anti-corruption legislation provisions) to developing sophisticated corporate policies, regulations and other documents in the employment area. Recently we have acted for:

Commerzbank on employment/labour law matters with respect to acquisition of Ukrainian Bank Forum and operations of the Ukrainian subsidiary;

HSBC on the employee stock option plan for Nadra Bank, the first cross-border ESOP for a Ukrainian bank;

Philip Morris Ukraine on assessing compliance of the company’s numerous local and global internal employment/labour policies, regulations and procedures with the Ukrainian labour law requirements;

TUI Travel PLC on the labour/employment issues related to acquisition of 75% stake of Voyage Kiev, a major tour operator in Ukraine, and “Galopom po Evropam” travel agency, including drafting employment agreements, job descriptions, and other internal regulations, as well as advising on hiring and dismissal of employees, compensations and benefits, employment of the specially protected groups of employees;

Generali Holding Vienna AG, one of the leading insurers in the CEE region, on various employment law issues, including drafting employment contracts with the members of the management board;

Greif on the employment law aspects of implementation of the corporate management structure of its Ukrainian subsidiary;

Ferrexpo on various aspects of engaging foreigners to work for a production facility, including drafting sophisticated employment agreements and civil law contracts;

one of the world’s largest banks on implementation of a new employment remuneration and benefits procedure in a Ukrainian subsidiary;

one of the world’s largest production companies on the complex, ‘know-how’, simultaneous FCPA related dismissal of CEO and top managers of Ukrainian subsidiary;

one of the world’s leading IT companies on adjusting its global HR handbook to Ukrainian labour law;

one of the world’s leading advertising workflow and distribution company on the optimal solution to lay off employees;

one of the large foreign owned banks on the Ukrainian law regulation of extra payments for combining jobs;

global payments technology company on the local specifics of the workplace health and safety regulation and adjusting the global corporate workplace health and safety policy to Ukrainian law;

SELECTED PROJECTS

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several world leading companies on various issues related to the employees transfer in the course of the M&A projects (both asset and share deals);

one of the leading European renewable energy companies on developing a sophisticated confidential information and commercial secret regulation to protect the company’s commercial information from mandatory disclosure during answering a public information disclosure request;

one of the world’s leading household products producers on the most efficient options available under Ukrainian law to replace the company’s CEO, including drafting an elaborate employment termination agreement and a complex employment contract incorporating provisions of the group template to the maximum extent possible under Ukrainian labour law;

global management consulting firm on problematic dismissal of a non-performing employee based on the results of her performance evaluation;

one of the world’s leading telecommunication solutions companies on the specific issues related to employing people with disabilities;

one of the world’s leading insurance companies on termination of employment of the foreign employee, including drafting a sophisticated employment termination agreement;

one of the world’s largest information technology companies on various aspects of engaging labour of temporary workers and interns, as well as on the procedure for changing the employment terms and conditions;

one of the largest Russian companies on the specifics of the Ukrainian law regulation of the personnel outsourcing;

one of the leading Ukrainian production companies on the due-diligence of the target’s compliance with the labour safety laws;

one of the world’s leading business consulting companies on adjusting its global HR handbook to Ukrainian labour law;

one of the world’s leading advertising workflow and distribution companies on the employment and personal data protection issues related to implementation of the employees’ reference system in a Ukrainian subsidiary;

European renewable energy investments company on the specifics of the overtime work regulation under Ukrainian labour law;

one of the world’s leading technology companies on (1) examining the employment contract with foreign CEO to make sure it complies with Ukrainian law; and (2) various employment and immigration law issues related to engaging foreign employees to work for the Ukrainian subsidiary;

subsidiary of a foreign company on the risks associated with engaging workforce (including foreigners) based on the commercial law agreements as individual entrepreneurs instead of the employment agreements;

one of the world’s leading business consulting companies on various issues related to employing personnel through its Ukrainian and Russian subsidiaries.

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PRIVACY AND DATA PROTECTION

Sayenko Kharenko has an exceptional privacy and data protection practice group combining the experts from the firm’s labour/employment, corporate, international trade, banking/finance, and intellectual property practices. This allows us to address the industry specific data protection issues and to cover all legal aspects of the privacy and data protection regulation in Ukraine.

The firm specializes, in particular, in developing local data processing and protection regulations, template data protection provisions of the employment contracts (agreements) and other relevant data protection documentation in many aspects being the firms’ know-how. We are recognized for drafting sophisticated controller-to-controller agreements, agreements between data controllers and processors, as well as between data processors and the third parties on transferring and processing data, both locally and abroad.

Our team has an exceptional expertise in advising on all aspects of the Ukrainian law regulation of the cross-border data transfers and, in particular, on proper documenting the data flow in corporate groups. The group’s lawyers conduct the data protection compliance due-diligence reviews of the Ukrainian targets, in particular, within the framework of the projects handled by our corporate/M&A practices. We also regularly issue legal opinions on various aspects of the data processing and protection, including with respect to the data protection laws implications on launching and operating whistle-blowers hotlines and conducting FCPA/UKBA/Ukrainian anti-corruption laws compliance investigations. Our team routinely advises on the Ukrainian personal data protection laws implications on implementing global HR policies and procedures in Ukrainian subsidiaries, as well as on website privacy policies and their terms and conditions of use.

Svitlana Kheda, counsel heading our privacy and data protection practice group is an internationally recognized expert in the field. She is a co-head of the ICC Ukraine’s data protection task force. Svitlana actively participates in the policy shaping and legislative drafting including in the data protection area. She has been actively involved in drafting amendments to the Law of Ukraine “On Personal Data Protection” and subordinate legislation. Svitlana regularly participates in the leading international privacy/data protection venues. She speaks and publishes on various sophisticated data protection issues.

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Recently we have advised on the following selected data protection matters, including representing:

Filasa and several other multinationals on developing a local corporate data protection legislation compliance program and preparing data protection policy and respective template employment agreement provisions and other data protection documentation;

one of the world’s leading production companies on (i) reviewing the personal database regulation and writing comments with respect to its contentious provisions; (ii) on advising on the multijurisdictional aspects of the controller-to-controller agreement and developing comprehensive explanations of the controversial provisions of the Ukrainian PDP Law for the foreign experts; and (iii) developing practical solutions to the personal data destruction issue;

one of the world’s leading banks on the specifics of the Ukrainian law regulation of the debtors’ data transferring from the bank to the debt collection company, and back from the debt collection company to the bank;

one of the large Ukrainian property developers on revising the company’s data protection policy and template internal data protection documents;

one of the world’s leading frozen food producers on the specifics of the Ukrainian law regulation of the cross-border personal data transfers;

one of the world’s leading agriculture companies on the Ukrainian data protection laws implications on transferring its global server storing HR record to a jurisdiction that does not provide adequate protection of personal data;

one of the world’s leading entertainment companies on the potential Ukrainian privacy/data protection legislation implications on purchasing products by using mobile applications;

one of the world’s largest manufactures on the Ukrainian personal data protection legislation implications on implementing the group global HR information system in the Ukrainian subsidiary;

one of the world’s leading agriculture companies on the Ukrainian data protection laws implications on implementation of the whistleblowing project in its local subsidiary;

one of the world’s leading pharmaceutical companies on the Ukrainian data protection laws implications on the employee transfer project in the course of an M&A transaction;

one of the leading Ukrainian real estate developers on reviewing the draft data protection memo and data transfer agreement prepared by the foreign legal counsel;

one of the world’s leading production companies on reviewing and commenting on its privacy policy and the website’ terms of use;

world leading food, agricultural and pharmaceutical companies on assessing the Ukrainian targets’ compliance with the Ukrainian personal data protection legislation.

SELECTED PROJECTS

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Sayenko Kharenko has a special anti-corruption and anti-bribery practice group, which is unique for Ukraine. The firm adopted its own anti-corruption compliance regulation and developed standard anti-corruption clauses to be incorporated into employment agreements with its employees and contracts with the firm’s vendors.

Sayenko Kharenko specializes in particular in adjusting the global corporate policies, prepared in accordance with the U.S. Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act 2010 (UKBA), to the Ukrainian anti-corruption legislation, and developing standard anti-corruption vendor contract clauses and other corporate documentation in the anti-corruption area.

Our experts develop ‘know-how’ compliance programs and anti-corruption rules implementation plans so they meet major requirements of the multinational groups affected by the FCPA and the UKBA while being adjusted to the Ukrainian regulatory, employment and business environment. For such projects, we also engage lawyers from our labour and employment and privacy/data protection teams.

We routinely conduct the FCPA and the UKBA compliance due diligence reviews of the Ukrainian targets, in particular within the framework of the projects handled by our corporate/M&A practices. We also advise on various aspects of the third party anti-corruption compliance due diligences based on the FCPA/UKBA/Ukrainian anti-corruption laws, including developing interview scenario and questionnaires tailored to the specifics of the client’s business, best practices and focused, in particular, on meeting the standards of the U.S. Department of Justice, Securities and Exchange Commission and other relevant regulatory authorities.

Sayenko Kharenko’s anti-corruption team also regularly issues legal opinions on various instances of gift/charity/grant-in-aid giving and providing hospitality/entertainment to the government officials and other subjects of liability for corruption offenses.

Our counsel Svitlana Kheda, heading the anti-corruption and anti-bribery practice group, is an internationally recognized expert in this area. Svitlana is a member of the Society of Corporate Compliance and Ethics (USA). Her professional experience includes running the Programs Department of the International Law Institute (Washington, DC, USA), where, in particular, she developed and taught the training seminar ‘Anti-Corruption Regulation’ for senior governmental officials and members of parliaments of developing countries and emerging economies. Svitlana regularly attends FCPA/UKBA trainings in the U.S. and the UK. She speaks and publishes extensively (in Ukraine and abroad) on the specifics of the Ukrainian anti-corruption legislative and regulatory environment. Svitlana recently spoke at the FCPA/UKBA Compliance Seminar in New York, USA. Ms. Kheda is an exclusive permanent author of the chapter on Ukraine published in Global Legal Insights – Bribery and Corruption, providing an overview of the anti-corruption and anti-bribery legislation in nearly 30 jurisdictions.

ANTI-CORRUPTION AND ANTI-BRIBERY

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Recently we have advised on the following selected anti-corruption/anti-bribery matters, including representing:

one of the world’s leading U.S. based companies on developing a local anti-corruption compliance program based on the FCPA, UKBA and the Ukrainian anti-corruption legislation, as well as preparing a user-friendly anti-corruption rules implementation plan aimed at making the compliance program clear for all Ukrainian employees, including blue-collar workers;

one of the world’s leading production companies on the U.S. current best practices and emerging trends in conducting third party anti-corruption due diligence reviews and interviews, and monitoring their ongoing compliance with the applicable anti-corruption laws and corporate group policies and procedures;

one of the world’s leading agricultural companies on the anti-corruption, data protection and other Ukrainian law implications on implementing a whistle-blower hotline in a Ukrainian subsidiary;

global consulting firm on developing a standard anti-corruption clause to be incorporated in contracts between a Ukrainian subsidiary and Ukrainian vendors based on the FCPA, UKBA and the Ukrainian anti-corruption legislation, and advising on the strategy of negotiating this anti-corruption clause with vendors, as well as on recommending practical and business oriented solutions to monitor vendors’ compliance with the clause focused on the DOJ/SEC standards;

one of the world’s leading food producers on the Ukraine’s specific corruption related red flags that should be considered when dealing with Ukrainian vendors, and in particular during anti-corruption compliance interviews;

one of the world’s leading US based production companies on implementing the two-tier anti-corruption compliance structure (i.e. on the corporate and employment levels);

one of the leading European iron ore explorers on (i) conducting comparative analysis of the UKBA and the Ukrainian anti-corruption legislation; (ii) adjusting the global corporate policy prepared in accordance with the UKBA to the Ukrainian anti-corruption legislation and making it compliant with Ukrainian labour law; and (iii) developing a sophisticated UKBA/Ukrainian anti-corruption rules implementation plan based on the specifics of the Ukrainian legal, regulatory, business, labour and employment environment;

one of the world’s leading agricultural companies on (i) developing the know-how compliance program based on the FCPA standards, but adjusted to Ukrainian legal, regulatory, business, labour and employment environment; (ii) conducting comparative analysis of the FCPA and the Ukrainian anti-corruption legislation; (iii) identifying key project related corruption risks; and (iv) proposing the workable solutions to mitigate the identified corruption risks;

one of the industry leading companies on determining the positions in its Ukrainian subsidiary exposed to corruption risks and amending respective job descriptions with anti-corruption provisions;

global management consulting firm on developing a local anti-corruption/anti-bribery corporate policy and the standard anti-corruption clauses of the employment agreements and commercial contracts based on the FCPA, UKBA and the Ukrainian anti-corruption legislation;

one of the world’s leading production companies on assessing (on the regular basis) compliance with Ukrainian anti-corruption legislation of various charity and grant-in-aid contributions, NGO membership and event sponsorship fees and issuing respective legal opinions.

SELECTED PROJECTS

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MEDIATION

As Sayenko Kharenko truly cares about the clients’ interests, our international arbitration and litigation lawyers, during assessment of the possible dispute settlement mechanisms for resolving a particular dispute, may advise their clients to try mediation prior to going to court or using arbitration. Depending on the transaction and other circumstances, mediation may be provided as a part of the two-tier or multi-tier dispute resolution contract clauses.

In Ukraine, the instances when the top management of the Ukrainian subsidiaries of foreign companies must be dismissed due to the identified violations of the FCPA, the UKBA or the Ukrainian anti-corruption legislation have been gradually increasing. However, the mere fact of commitment of such violations is not sufficient to fire the guilty general director and other managers under the Ukrainian labour legislation. The experience shows that the use of formal mediation or application of mediation techniques during dismissal negotiations is crucial. This is particularly true in view of that the labour disputes are not arbitrable under Ukrainian law and, therefore, if a dismissed employee files a wrongful dismissal lawsuit with a competent court the identified FCPA/UKBA and/or Ukrainian anti-corruption legislation related violations will become public, which is the least desirable outcome for the foreign parent companies.

Several Sayenko Kharenko’s lawyers are also the certified mediators. Depending on the circumstances, they can either sit as mediators or use their knowledge of the specifics of the mediation method, techniques and procedure to represent the clients during the employment, commercial and other types of mediation.

Our counsel Svitlana Kheda is a certified mediator experienced in employment mediation. She is heading the ICC Ukraine based Mediation Centre and is a founding member of the Mediation Practices Club under the auspices of the Ukrainian Mediation Centre. Svitlana is a well-known champion of the mediation development in Ukraine. She speaks and writes frequently on mediation issues, both in Ukraine and abroad.

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Svitlana Kheda, counsel, is heading our labour and compliance practice, in particular leading the firm’s labour/employment, privacy/data protection and anti-corruption/anti-bribery practice groups. Svitlana is also in charge of the mediation task force.

Experience

Ms. Kheda has over 17 years of experience in advising clients on a wide range of sophisticated, complex issues in the field of labour/employment, privacy/data protection and anti-corruption/anti-bribery legislation, as well as public-private partnerships (PPP) in infrastructure projects. Svitlana is the internationally recognized expert in all of the above areas of law, known for her state-of-the-art, business oriented and user-friendly work.

In addition to her vast practical experience in handling the most sophisticated employment law matters Svitlana Kheda has profound theoretical knowledge of the labour law, which is a rare skill on the legal market. She is named as one of Top 2 labour law lawyers, according to Ukrainian Law Firms 2014, and recommended as one of the best lawyers in Ukraine by Chambers Europe 2014, Best Lawyers International 2014 and the all-Ukrainian survey Client’s Choice. TOP-100 Lawyers in Ukraine 2012–2013.

Svitlana is an arbitrator of the ICC Ukraine ADR Service. She is a certified mediator experienced in employment mediation. Svitlana is heading the ICC Ukraine based Mediation Centre and is a founding member of the Mediation Practices Club under the auspices of the Ukrainian Mediation Centre.

Svitlana’s professional experience includes running the Programs Department of the International Law Institute (Washington, DC, U.S.A.), where, in particular, she developed and taught the training seminars “Anti-Corruption Regulation”, “Arbitration and Mediation”, “PPP in Infrastructure”, and “Legislative Drafting” for senior governmental officials and members of parliaments of developing countries and emerging economies. Svitlana Kheda’s experience also includes working for a leading international law firm in Ukraine, and supervising (at the client’s request) the HR department of one of Ukraine’s biggest garment factories.

Contacts:

skheda@sk.ua

Svitlana Kheda, S.J.D., LL.M.

KEY CONTACT

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Svitlana Kheda actively participates in the legislative drafting and adjustment of the Ukrainian legislation to the international standards. For instance, she has been actively involved in drafting amendments to the Law of Ukraine “On Personal Data Protection” and policy shaping in this area. Svitlana is heading the parliamentary working group on developing the Ukrainian PPP legislation and is a member of the governmental working group tasked with developing Ukrainian legislation on road concessions. Svitlana is a well-known champion of the PPP and mediation development in Ukraine.

Svitlana Kheda is an internationally recognized expert in labour law, as well as personal data protection and anti-corruption legislation. She is a published author of a monograph, chapters in the books, and over 80 articles and commentaries in the U.K., Ukraine, U.S., Turkey, India, and Canada. Svitlana is an exclusive permanent author of the chapter on Ukraine published in The Employment Law Review, providing an overview of the labour/employment legislation in over 50 jurisdictions, as well as in Global Legal Insights - Bribery and Corruption, providing an overview of the anti-corruption and anti-bribery legislation in nearly 30 jurisdictions. She is a frequent speaker on topical legal issues within her areas of expertise, including abroad. Svitlana recently spoke at the FCPA/UKBA Compliance Seminar in New York, USA.

KEY CONTACT

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Global policies and procedures are per se enforceable in Ukraine;

Employment contract can be of unlimited duration;

The only option to dismiss employees of the company to be liquidated is to go through the mass layoff procedure prescribed by law;

There is no legal way to dismiss a pregnant woman or any other employee specially protected by law;

There is no labour law related risk in using services of the out-staffing agencies while engaging temporary employees;

There are no legal restrictions on outsourcing HR, accounting and documents storing functions of Ukrainian companies;

There is no need for employers to enforce vacations policies;

Foreign employees of Ukrainian representative offices of foreign companies must obtain work permits to legally work in Ukraine;

There is no risk in engaging labour based on services and other commercial law agreements;

Under Ukrainian law there are no restrictions regarding data flow in the corporate groups;

Any employee may be brought to full material liability;

Non-production companies are not subject to labour safety regulation;

It is a sole responsibility of the employer to initiate a collective bargaining process;

Government officials and public servants are not allowed to possess corporate rights;

Employment agreement and/or hiring order are the only ground for establishing employment relationships;

Any employee is allowed to combine jobs;

Non-compete clauses of employment agreements are enforceable under Ukrainian law;

Actual wording of the dismissal order and/or dismissal statement in the labour book does not matter;

It is not necessary to implement sophisticated anti-corruption and data protection policies in Ukrainian companies;

Global compliance programs are sufficient to ensure Ukrainian subsidiaries’ compliance with relevant foreign and local legislation.

COMMON UKRAINIAN LABOUR/EMPLOYMENT LAW AND COMPLIANCE RELATED MISPERCEPTIONS

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Labour/employment law and compliance are closely connected as using the labour/employment law tools during implementing compliance programs can increase compliance efficiency and mitigate the risk of compliance related disputes;

Employment agreement and employment contract are not identical;

Sphere of use of employment contracts is strictly limited by laws of Ukraine;

Not every employee can be engaged based on the non-fixed working day/week regime arrangement;

Employees must be notified in advance on their possible relocation even if within the same entity/unit;

All company visitors have to be instructed in labour safety;

Government officials and public servants in general are prohibited to serve on the for-profit company’s management board or supervisory council;

There is a risk that a fixed-term employment agreement can be treated as an unlimited duration arrangement;

Services and other commercial law agreements should be carefully drafted to avoid the risk of their possible interpretation as those concealing de facto employment relationship;

Properly documented probation term can be a workable alternative to a fixed-term employment agreement;

To comply with Ukrainian immigration laws, a foreign employee, if located in Ukraine at the time of obtaining a work permit, must leave Ukraine and file for a special type of visa;

There is no statute of limitation for claiming the unused vacation entitlement compensation;

The manning table is a mandatory document for all entities operating in Ukraine;

Trade union is entitled to monitor the employer’s compliance with the labour legislation and is authorized by law to demand the employer to rectify such violations;

Employees have to be notified in advance on each instance of their salary and benefits change;

Collective bargaining agreement has to exist in any company operating in Ukraine notwithstanding the company’s ownership, industry and a number of employees;

Ukrainian subsidiaries have to develop compliance programs implementation plans taking into account the specifics of Ukraine’s regulatory, business and employment environment and targeted at all their employees, including blue-collar workers.

COMMON STATEMENTS VALID FROM THE UKRAINIAN LABOUR/EMPLOYMENT LAW AND COMPLIANCE PERSPECTIVE

10 Muzeyny ProvulokKyiv 01001, UkraineT: +380 44 499 6000

www.sk.ua