Point of View... How the employer signs a valid non-competition agreement or clause with the worker.
Published:
2024-04-30
With the development of market economy, the flow of workers in different enterprises is more and more frequent. For employers, some workers know that they have mastered the business secrets of the enterprise, and once they leave, it is easy to cause the loss and disclosure of business secrets, causing heavy losses to the employer. How does the employer enter into a valid non-competition agreement or clause with the worker?
With the development of market economy, the flow of workers in different enterprises is more and more frequent. For employers, some workers know that they have mastered the business secrets of the enterprise, and once they leave, it is easy to cause the loss and disclosure of business secrets, causing heavy losses to the employer. Therefore, signing a non-competition agreement with this part of the staff or restricting the workers' non-competition behavior through non-competition clauses is a good way to protect the business secrets of the enterprise and protect the workers' right to choose their own jobs. Then, how can the employer sign an effective non-competition agreement or clause with the workers?
1. choose the appropriate form of signing
According to the relevant provisions of the Labor contract Law, non-competition means that workers with the obligation of confidentiality shall not hold posts in employers that produce similar products, operate similar businesses or have other competitive relations within a certain period of time after the termination or termination of the labor contract, nor shall they produce similar products or operate similar businesses that compete with the original unit. In practice, employers and workers with confidentiality obligations mainly agree on competition restrictions by signing a separate "non-competition agreement", signing a "non-disclosure agreement" or "labor contract" with independent provisions of non-competition restrictions. The employer should consider the actual situation of the unit and the enthusiasm and sensitivity of employees to sign the agreement to choose the appropriate signing form.
2. attention to the validity of the elements of non-competition
1. Effectiveness of the subject of competition restrictions
Article 24 of the "Labor Contract Law" stipulates that non-competition personnel are limited to senior management personnel, senior technical personnel and other personnel with confidentiality obligations of the employer. However, on the issue of how to define senior managers and senior technical personnel, the Labor contract Law does not have clear and specific provisions, which can be used as a reference to the provisions of the Company Law: senior managers, refers to the manager, deputy manager, financial person in charge of the company, the secretary of the board of directors of a listed company and other personnel stipulated in the articles of association of the company.
There is no express provision in the law on "other persons with a duty of confidentiality", and it is not easy to judge in practice. Many courts require employers to prove that employees meet the main requirements of signing non-competition agreements. If the employer cannot prove it, the non-competition agreement will be considered invalid. Therefore, in order to avoid the non-competition agreement being deemed invalid, it is necessary to remind the employer not to arbitrarily expand the scope of non-competition personnel, and there is no need to sign a non-competition agreement with workers who cannot actually contact the employer's trade secrets.
2. Validity of the non-competition period
Some employers have different views on this in practice. Some courts hold that the competition restriction period belongs to the agreement after the termination of the labor contract. Some courts hold that the competition restriction belongs to the agreement after the termination or termination of the labor relationship, and the working period of the laborer does not belong to the category of competition restriction. Some courts hold that the autonomy of both parties to the agreement should be respected. As far as Shandong is concerned, Article 8 of the minutes of the meeting of Shandong Provincial higher people's Court and Shandong Provincial Department of Human Resources and Social Security on several issues concerning the trial of labor and personnel dispute cases, "employers and workers agree on non-competition obligations and liability for breach of contract during and after leaving office, and workers violate the non-competition agreement during their employment. If the employer requires the worker to bear responsibility on this ground, the worker shall perform the non-competition obligation in accordance with the contract, if the employer requires the employee to bear the responsibility for the violation of the competition restriction agreement during the period of employment, it shall be supported." Therefore, the employee should also abide by the competition restriction agreement during the period of employment.
In addition, Article 24 of the "Labor Contract Law" stipulates that the period of non-competition restrictions shall not exceed 2 years after the termination or termination of the labor contract. If it exceeds two years, the non-competition agreement shall be automatically terminated.
3, the validity of the non-competition compensation.
Article 23 of the "Labor Contract Law" stipulates that if an employer signs a non-competition agreement with a worker, it shall give the worker economic compensation on a monthly basis within the non-competition period.
At present, the state has no unified provisions on the standard of economic compensation, which can be determined by the two sides through consultation according to the benefits brought to enterprises by the protection of trade secrets, the region and duration of non-competition restrictions and other factors. For those who have agreed on business competition restrictions but have not agreed on economic compensation, Article 36 of the Interpretation (I) of the Supreme People's Court on the Application of Legal Issues in the Trial of Labor Dispute Cases stipulates that the laborer has fulfilled the obligation of business competition restrictions and requires the employer to follow the labor contract. If 30% of the average monthly salary is paid monthly economic compensation before the termination or termination, the people's court shall support it. If 30% of the average monthly wage is lower than the minimum wage standard of the place where the labor contract is performed, it shall be paid in accordance with the minimum wage standard of the place where the labor contract is performed.
4, the validity of the breach of competition restrictions.
(1) The employer may agree with the worker on the breach of the obligation of non-competition. The law has no standard limit on the setting of liquidated damages. In practice, employers usually tend to agree on high liquidated damages, but the judiciary does not necessarily fully support it, but adjusts it according to the specific circumstances. The factors to be considered are: the degree of subjective malice of the employee; the length of the breach of contract; the length of the employee's working years, the nature of the position and the level of income; the agreed amount of economic compensation for non-competition restrictions; the losses suffered by the employer; and the potential benefits available to the employee.
After the laborer violates the non-competition agreement and pays the liquidated damages to the employer, the employer still has the right to require the laborer to continue to perform the non-competition obligation in accordance with the agreement.
(2) The employer violates the obligation of non-competition.
The employer has the obligation to pay economic compensation for non-competition restrictions in accordance with the agreement. If the employer fails to pay economic compensation for 3 months due to the employer's reasons, the people's court shall support the worker's request to lift the non-competition agreement.
5. Validity of other elements of competition restrictions
Article 24 of the "Labor Contract Law" stipulates that the scope, region, and period of competition restrictions shall be agreed upon by the employer and the employee. Under normal circumstances, the field restriction clause should be limited to the field that has a competitive relationship with the original enterprise. It should not only be determined from whether the legally registered business scope coincides, but also should be combined with the actual business content, service object or product audience, corresponding market, etc. Whether it coincides to make a comprehensive judgment; the geographical aspect should be limited to the business field and scope of the enterprise, and no restrictions can be set for unexplored markets or possible future business areas, and it should be limited to the area where the employer may compete with the employer in substance, and cannot be expanded to the area where the employer may conduct business, otherwise it may be deemed invalid by the court.
3. Advice to Employers
The core purpose of competition restriction is to protect trade secrets, but it should also give full consideration to the workers' right to choose their own jobs. Therefore, employers should make a good balance between the two when signing competition restriction agreements with workers.
1, choose the appropriate signing form, grasp the timing of signing.
As mentioned earlier, the separate "non-competition agreement" is more solemn than the non-competition restriction clause in the "confidentiality agreement" or the "labor contract", and the sensitivity and enthusiasm of the workers are different. The employer should choose the appropriate signing form according to the actual situation of the unit. In addition, for positions that may be exposed to trade secrets, non-competition clauses or agreements should be concluded as far as possible at the time of entry of the worker. If signed at the time of departure, the worker may temporarily raise the asking price or refuse to cooperate.
2. Strictly select the main scope
Before signing a non-competition agreement, the employer should first judge whether the worker is a person who may be exposed to trade secrets and whether he has the obligation of confidentiality, because the non-competition restriction means that the employer pays for non-competition compensation. if the non-competition restriction applies to workers who do not bear the obligation of confidentiality, it will undoubtedly increase the cost of the employer. Therefore, in the choice of the scope of the signing subject, the employer should be cautious according to its own actual situation.
3, the term can cover the period of service.
The currently effective "Minutes of the Meeting of Shandong Higher People's Court and Shandong Provincial Department of Human Resources and Social Security on Several Issues Concerning the Trial of Labor and Personnel Dispute Cases" has made it clear that the non-competition restriction can be applied during the working period. Therefore, the employer can cover the working period when the non-competition restriction period is agreed. On the one hand, the working worker should not compete with the employer, and the employer does not need to pay additional non-competition compensation. On the other hand, it helps to improve the duty of care of workers and avoid unnecessary disputes caused by non-competition restrictions after leaving office.
4. When leaving the company, it is clear again whether there is a need for non-competition restrictions.
The employer's valuable trade secrets have a time limit, and the employee is likely to transfer to another post during his employment. Therefore, when the employee leaves the company, the employer should re-evaluate whether the trade secrets learned by the employee have been declassified and whether the non-competition requirements should be lifted. If it is necessary to continue to implement the non-competition restrictions, the employer shall remind the laborer in writing of his obligations and pay compensation in a timely manner; if it is believed that the laborer is no longer required to perform the non-competition obligations, it shall make it clear in writing that the laborer does not need to comply with the non-competition restrictions. Agreement or terms, the employer does not need to pay compensation.
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