ROMANIA Law and Practice Contributed by: Oana Palita and Camelia Meirosu, Eversheds Sutherland Romania
The entitlement and conditions under which employ - ees may apply for and benefit from these types of leave are specific to each leave.
Unless this option is expressly reserved and docu - mented in the employment contract, the employer cannot unilaterally waive the non-compete clause. 2.2 Non-Solicits Non-solicitation clauses are commonly included in employment contracts, particularly for management or key employees who have direct access to clients, business-sensitive information or other employees. These clauses aim to restrict former employees from soliciting either their former colleagues or the com - pany’s clients for a certain period following the termi - nation of the employment relationship. Non-solicitation clauses may target two distinct types of conduct. First, they may prohibit the former employee from actively seeking to recruit or induce other employees to leave the employer. Second, they may restrict the former employee from approaching or enticing clients or business partners of the former employer with whom they had direct contact during employment. Unlike non-compete clauses, non-solic - itation clauses are not subject to mandatory financial compensation and can be validly agreed without any additional payment being made to the employee. 3. Data Privacy 3.1 Data Privacy Law and Employment Data privacy in the context of employment relations is governed by the General Data Protection Regulation (GDPR) as well as by specific local legislation (Law 190/2018). From a local employment law perspective, besides the GDPR’s provisions being applicable, there are local requirements that must be observed by employers. For example – and by reference to one of the more commonly asked questions in this field – if the employer intends to implement means of monitoring the activity of employees, either through communica - tion means or through video surveillance systems, this approach is subject to ensuring that:
2. Restrictive Covenants 2.1 Non-Competes
Non-compete clauses may be validly concluded either at the time of entering into the individual employ - ment agreement or subsequently during the course of employment. Such clauses are subject to specific validity and enforceability conditions imposed by the Romanian Labour Code. Non-compete clauses are particularly common for employees in management or strategic positions, where the employer has a legitimate interest in pro - tecting confidential information, business know-how and client relationships. Post-termination non-compete clauses are subject to financial compensation. The compensation must be paid on a monthly basis for the entire duration of the restriction period and may not be lower than 50% of the employee’s average gross monthly salary during the last six months preceding the termination of the employment relationship. To be valid, the non-compete clause must expressly address the following elements: • the specific activities that the former employee is prohibited from performing; • the identity or categories of third-party competitors for whose benefit the employee cannot work; • the amount of the monthly non-compete indemnity; • the geographical area in which the restriction applies; and • the maximum duration of the restriction, which may not exceed two years from the termination of the employment agreement. To the extent that the employee deems the restrictions contained in the non-compete clause to be excessive/ disproportionate, it may refer the case to the compe - tent court of law, which may limit the effects of the non-compete clause.
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