salesman spread the customer contact information and order information and was sentenced to compensate the company for more than 200,000 yuan in economic losses; after leaving the company, the technician reselled his old boss's technical information, and was sentenced to three years in prison for 's infringement of commercial secrets... Infringement of commercial secrets may bear huge liability for compensation and even sentenced to prison, which is not alarmist. As a worker, do I know clearly what a business secret is? Am I a confidential employee of my unit? confidentiality agreement when joining the job, what does the restriction on competition when leaving the job mean to me? If you still have questions about the above issues, you might as well read this article.
1. Am I a confidential person in my unit?
Confidential persons, that is, people who can access the employer's business secrets and have the risk of leaking trade secrets and need to deal with such risks.
(I) Have I come into contact with trade secrets?
: What can be exposed to commercial secrets is confidential personnel who need to focus on preventing the risk of leaks. To do this, it is first necessary to clarify what a business secret is.
According to the definition of the " Anti-Unfair Competition Law ", commercial secrets are technical information, business information and other commercial information that are not known to the public, have commercial value, and have corresponding confidentiality measures taken by the right holder. Technical information refers to the structure, raw materials, components, formulas, materials, samples, and styles related to the technology, the materials, processes, methods or steps of propagation of new plant varieties, algorithms, data, computer program and related documents, etc. Business information refers to creativity, management, sales, finance, planning, samples, bidding materials, customer information, data and other information related to business activities.
can be seen. From the perspective of type, business secrets can be said to be "both liberal arts and sciences". Employees in technical positions need to keep secrets, and employees in secrets and types also need to keep their words on confidential content.
technical information and business information meet the above conditions of "not being known to the public, having commercial value and taking corresponding confidentiality measures by the right holder" is a commercial secret. According to the requirements of the "National Pilot Work Plan for the Protection of Commercial Secrets" issued by the State Administration for Market Regulation, the confidentiality measures of enterprises in the future will be more specific and clear, and the scope, types, confidentiality period and other contents will be clearly stated. Therefore, for employees, the more convenient method is to judge whether the employer has taken confidential measures for specific technical information and business information . The confidentiality measures generally taken by companies are such as: entering into a confidentiality agreement for specific information, such as the relevant information mentioned in the confidentiality clause in in labor contract; setting conditions for contacting specific information, such as setting access control for the workplace and restricting access; restricting the operation methods of specific information, such as prohibiting the storage and copying of specific information; etc.
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(II) If no confidentiality agreement is signed, will you not have to bear the confidentiality obligation of ?
According to the relevant provisions of the Anti-Unfair Competition Law and the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Civil Cases of Infringement of Trade Secrets, signing a confidentiality agreement with workers is one of the confidentiality measures that enterprises should take. Usually there will be no situation in which enterprises have the intention to keep specific information confidential but do not sign a confidentiality agreement with workers who may be exposed to this information. But the exception is that the prohibition on competing for the company's directors and senior management personnel is directly stipulated by the " Company Law " and there is no need to have a prior agreement with the company in charge.
2. I am a confidential employee, how should I keep it confidential?
(I) Confidentiality obligations when working
Article 23 of the " Labor Contract Law " stipulates: "The employer and the employee may agree in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights."
Such confidentiality agreements usually contain the scope, confidentiality method, confidentiality period and other contents of confidential information. The confidentiality obligations of confidential employees when working are determined based on their confidentiality agreement with the employer.In addition, in addition to fulfilling the agreement on confidentiality obligations, the company's directors and senior management personnel must also bear the obligations such as prohibition of competition in in accordance with Article 148 of the Company Law.
(II) Obligation for restriction of competition after resignation
Some confidential employees have agreed to similar content such as "no similar business shall be allowed within a certain period of time after resignation". This type of agreement is legally called the "restriction of competition" clause. Specifically, after the labor contract is terminated or terminated, the person who is under the obligation to restrict competition cannot change jobs in the same industry (to work in other employers that have a competitive relationship with the original unit that produces or operates similar products or engages in similar businesses), nor can they become their own boss (opens up production or operates similar products or engages in similar businesses). The restriction of competition clauses are of great significance to protecting commercial secrets. The Labor Contract Law recognizes the effectiveness of such agreements and allows employers to agree on a liquidated damages for violating the restriction of competition obligations.
In addition, according to the provisions of the "Interpretation of the Supreme People's Court on the Application of Laws in Trial of Labor Disputes Cases (I)", after the worker violates the agreement on the restriction of competition and pays a liquidated damages to the employer, the worker shall continue to continue to perform the obligation to restrict competition in accordance with the agreement.
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3. After resigning, what should I do if I cannot engage in similar jobs, waste my skills and affect my income?
restriction of competition clauses limit workers' independent employment choices in order to protect trade secrets. Taking this into consideration, the law weighs the rights and interests of workers in the following two aspects. First, the restriction of competition shall not exceed the statutory period. According to Article 23 of the Labor Contract Law, the term of the restriction of competition shall not exceed 2 years after the termination or termination of the labor relationship. If the agreed period of nominal competition exceeds 2 years, the excess is an invalid agreement. Secondly, during the period of restricted competition, the employer shall give compensation to the employee. During the period of restricted competition, workers cannot engage in familiar with the industry, learn skills, and cannot convert income. The employer must agree on economic compensation in the restricted competition agreement. According to relevant regulations, the amount of monthly economic compensation shall not be less than 30% of the average monthly wage of the workers in the twelve months before the termination of the labor contract with or the termination.
In addition, the restriction of competition agreement may be terminated early. If the employer fails to pay economic compensation for three months due to reasons, the employee may request the lifting of the restriction on competition agreement. If the employer requests to terminate the restricted competition agreement in advance, the employee may require the employer to pay an additional 3 months of economic compensation.
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References:
1. Deng Heng: "Research on Practical Issues in Trial of Prohibited Competition Disputes", published in "Application of Law" 2017 Issue 15.
2. Jiang Kai: "Discribing the attributes of restricted obligations for workers in-service competition", published in "Law" No. 1, 2019.
3. Zeng Jing: "Research on the Issue of Determination and Competitive Responsibility Competitiveness of Workers Violating the Limit of Competitive Limits", published in "Application of Law" No. 4, 2020.
Editor in charge: Pan Yu
Text editor: Zhou Maojie
