compensation clause is not a necessary clause for the implementation of the confidentiality agreement. If no economic compensation is paid during the period of restricted competition, the worker may file a lawsuit with the people's court to terminate the agreement. The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights. It does not violate the mandatory provisions of laws and administrative regulations, nor does it violate public order and good customs.
Netizen consultation: Is the confidentiality agreement that does not provide compensation for the confidentiality agreement valid?
Lawyer Huang Yan from Guoxinxinyang Law Firm answered:
If the confidentiality agreement does not stipulate a confidentiality fee, it will not affect the validity of the confidentiality agreement. After the worker complies with the confidentiality agreement, he or she may require the employer to pay economic compensation.
compensation clause is not a necessary clause for the implementation of the confidentiality agreement. If no economic compensation is paid during the period of restricted competition, the worker may file a lawsuit with the people's court to terminate the agreement. The employer and the employee may agree in the labor contract to keep the employer's business secrets and confidential matters related to intellectual property rights. It does not violate the mandatory provisions of laws and administrative regulations, nor does it violate public order and good customs.
"Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Labor Dispute Cases (IV)" Article 6: If the parties have agreed on restrictions on competition in the labor contract or confidentiality agreement, but have not agreed to give the worker economic compensation after the termination or termination of the labor contract, the worker has fulfilled the obligation to restrict competition and requires the employer to pay economic compensation monthly at 30% of the employee's average salary in the twelve months before the termination or termination of the labor contract, the people's court shall support it.
If 30% of the monthly average wage stipulated in the preceding paragraph is less than the minimum wage standard for the place where the labor contract is performed, it shall be paid in accordance with the minimum wage standard for the place where the labor contract is performed.
Article 7: If the parties agree on restrictions on competition and economic compensation in the labor contract or confidentiality agreement. When the parties terminate the labor contract, unless otherwise agreed, the employer requires the employee to fulfill the obligation to restrict competition, or the employee requires the employer to pay economic compensation after fulfilling the obligation to restrict competition, the people's court shall support it.
Lawyer Huang Yan from Guoxinxinyang Law Firm Analysis:
Employers’ confidentiality requirements for employees can be agreed to be in a confidentiality agreement or in a labor contract. Therefore, employers can sign confidentiality agreements with certain employees individually, or they can sign labor contracts with confidentiality clauses with all employees. Generally speaking, the content of the confidentiality agreement is always more detailed by the confidentiality terms. Article 6 of the "Several Opinions on Strengthening the Management of Technical Secrets in the Movement of Scientific and Technological Personnel" stipulates that enterprises and institutions may sign confidentiality agreements with their scientific and technological personnel, administrative personnel, as well as those who may know technical secrets due to business or business-related personnel in accordance with relevant laws. Generally speaking, employees who sign confidentiality contracts with the company include:
1, senior research and development personnel, technicians, and business management personnel; they either master the core technology of the company, or are responsible for the main management of the company, and master the important business information of the company. They are the main objects of signing confidentiality agreements.
2. General technical support personnel and technical workers in key positions; although they are not the most important personnel, they may also be exposed to the core technology of the company and it is necessary to sign a confidentiality agreement with them.
3, marketing plan, sales personnel; they are the implementers of business decisions, understand the company's marketing plan and customer list, so the company will also sign a confidentiality agreement with them.
4, accounting personnel, secretaries, security personnel, etc. They all may learn about the business secrets of the company due to their position. If they do not sign a confidentiality agreement with them, they may intentionally or unintentionally disclose the business secrets of the company.
Disclosure agreement contains content:
1. Confidential content and scope. There is no clear provision in the law. Employers may use a secret list to clarify it.
2. The confidentiality period can exceed the labor relationship's expiration date and last until a certain time after the worker leaves the job.
3. Confidentiality fees, there is no mandatory provision in the law, but the payment of confidentiality fees by enterprises has a certain positive effect.
4. Confidentiality obligations and responsibilities. The confidentiality agreement shall not stipulate that employees should pay liquidated damages if they leak secrets, and they can only ask employees to compensate for the losses caused to the company.
Article 23 of the Labor Contract Law, employers and workers may agree in the labor contract to protect the employer's trade secrets and confidential matters related to intellectual property rights.
For workers who are obliged to keep confidentiality, the employer may agree with the employee in the labor contract or confidentiality agreement to restrict competition clauses, and agree that after the labor contract is terminated or terminated, the employee will be given financial compensation monthly within the period of restriction of competition. If a worker violates the agreement on the restriction of competition, he shall pay the employer a penalty for breach of contract in accordance with the agreement.
Article 24: Persons subject to restrictions on competition are limited to senior management, senior technicians and other personnel with the obligation to keep confidentiality. The scope, region and term of the restriction of competition shall be agreed upon by the employer and the employee, and the restriction of competition shall not violate the provisions of laws and regulations.
After the labor contract is terminated or terminated, the limited period for the person specified in the preceding paragraph to go to other employers who have a competitive relationship with the unit that produces or operates similar products or engages in similar businesses, or to open up production or operates similar products and engages in similar businesses by themselves, and shall not exceed two years.
Article 25, except for the circumstances stipulated in Articles 22 and 23 of this Law, the employer shall not agree with the worker to bear the liquidated damages.
Introduction to lawyer Huang Yan
has been engaged in corporate legal services for more than 10 years. He has served many well-known state-owned enterprises, foreign enterprises and private enterprises. He is good at handling disputes in the fields of commercial debt collection, labor-management relations, construction contracts, intellectual property rights, and corporate criminal compliance. He is diligent and dedicated, and strives to maximize the benefits for every customer.
