The issue of the simultaneous work of a developer for several customers is multifaceted: here is the issue of the applicable legislation (Ukrainian or of another country), and judicial practice, and the provisions of the contract. Therefore, it is always better to consider a specific situation in order to clearly understand the boundaries of what is permitted.
As for the legislation of Ukraine, it allows a person to freely choose where and how much to work (with some exceptions, such as civil servants, etc.). For example, this right in one wording or another is enshrined in Art. 4 of the Human Rights Convention , Art. 43 of the Constitution of Ukraine , Art. 5-1 of the Labor Code of Ukraine . At the same time, if a programmer is a private entrepreneur (in everyday life in Ukraine called “FOP”), and concludes development contracts in this status, then this all the more implies the freedom of choice of customers (for example, Article 5 and Article 6 of the Commercial Code of Ukraine ).
In addition, it is better for private entrepreneur and their customers that the private entrepreneur fulfills the orders of several companies, and not one, otherwise there is a risk of recognizing him as an employee of the corresponding IT company with all the consequences (fines, etc.).
As for the restrictions. They can be set in the contract, and in some cases – in the policies of the IT company. We are talking about private (not public) companies in this article. In any contracts, there may be restrictions of varying complexity on working for other customers: it makes no sense to consider all kinds of them. But the main question is how such restrictions can be applied.
Contracts usually establish two types of sanctions for such violations: termination of the contract and a fine.
With the termination of the contract, everything is simple: most likely, if the company wants, it will terminate the contract (we will not consider exceptions).
If the developer works under an employment contract (is on the staff of the company), then penalties (in the form of fines, penalties) cannot be applied to him! Any provisions on fines in an employment contract are invalid, since the labor legislation of Ukraine provides for only 2 types of penalties: reprimand and dismissal (Article 147 of the Labor Code of Ukraine ).
If the developer works under a gig contract or other contract for a resident of Diya City, the parties may conclude in accordance with Art. 27 Law a special “non-competition” treaty, according to which, among other things, the developer must receive a separate remuneration for refusing to compete. Although this provision in the legislation is new, it can be expected that penalties for violation of such an agreement will be applied by Ukrainian courts, especially given the already existing position of the courts in similar cases (case No. 761/15245/18).
If the developer works under a civil (economic, foreign economic activity) contract, then penalties may well be established by the contract and applied to the contractor. However, it is quite difficult to make a private entrepreneur liable for violating the provisions of the “non-competition” agreement: we wrote about this in more detail in the article. Based on the current legislation and judicial practice of Ukraine, private entrepreneur may do not worry much about working for several companies simultaneously, except when such an agreement complies with the above-mentioned Art. 27 of the Law. But the fines associated with violation of confidentiality rules or violation of intellectual property rights that accompany work for two or more companies are quite real and there are already legal precedents in this field. Therefore, it all depends on the wording of the contract and the specific case. Lawyers of IT companies also think about how to protect the customer and draw up contracts accordingly.
However, if the customer company is a non-resident and the contract states that the applicable law to the contract is not Ukrainian, and the place of arbitration under the contract is in another country, it is quite possible that such a company will be able to obtain a decision to impose a fine on the private entrepreneur. And then it is not known how and when this solution will be used against the violating developer.
And we should not forget that when concluding an agreement with a “second” company, the developer can sign a guarantee that he/she is not contracted anywhere else. And the 2nd company will be able to fine the violator without any problems (if there are such provisions in the contract), and even complain to law enforcement agencies.
And separately the issue of notifying the first company about concluding a contract with other customers: in the legislation there is no responsibility for such actions (or rather, inaction), and in contracts there are extremely rare provisions with penalties for such violations. Moreover, even if there are such provisions in the contract, their application in the Ukrainian legal system is unlikely. However, such a dispute can ruin the reputation of the developer.
All of the above applies to fines that are established in the contracts. A separate issue of administrative and criminal liability, compensation for damages, however, in most cases, work for 2-3 companies will not entail such consequences in itself, so we will not consider them now.
General recommendation regarding the work of developers for 2-3 companies: carefully read the contract (if possible, consult with a lawyer) and approve this issue with your customers. And if you already want to “quietly” earn extra money somewhere else, then you need to be prepared for litigation (if the contract is drawn up in favor of the customer), even without good chances for win. And of course, working for multiple companies should not involve violating the intellectual property rights or privacy rules of either party – such violations clearly entail negative consequences, regardless of applicable law.
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