Confidentiality and competition: employers, protect yourself

Any employee may be asked during the course of his or her employment to become aware of confidential information about the company, its products, its manufacturing processes or its customers. For professional and personal liability matters, it is imperative for the employer to protect this information. “The latter can take practical measures that are not strictly legal, such as B. Access restrictions with magnetic cards or secret and secure codes. He can also resort to a little-used remedy, namely the insertion of clauses specifically governing the company’s secrets and know-how. explains Florian Poncin, attorney at Brucher, Thltgen & Partners.

Detailed clauses for better protection

Among these particular clauses, the confidentiality clause regularly appears in contracts, but is often limited to a few lines that very vaguely state the employee’s obligation to protect information obtained in the course of his employment and beyond. “Unlike other rules, law and jurisprudence allow this clause to survive the contract where it so provides. The more precise this clause is, the more it protects the employer. We therefore recommend giving as many concrete examples as possible.” adds the lawyer.

Introduced by a 2019 law, the protection of “trade secrets” differs from “simple” confidentiality and is still very little known. In fact, it is extremely rare to find a trace of this legislation in employment contracts. This is strange, since this relatively new legislation offers the employer sharp, swift and effective protection against both competitors and unscrupulous ex-employees. True, it is quite difficult to distinguish trade secrets from purely confidential information. However, three cumulative criteria make it possible to define this “commercial secret”. ” First, the information must have commercial value. In other words, can it be used by the company to make a profit or to develop its activity or customer base? Then the information must be secret and known only to a limited group of people within a certain sector. Finally, technical measures must be taken to ensure that this secrecy is maintained: manual key, access card or even an explicit and detailed mention of secrecy in the contract.” That is likely Less than 10% of employers now include a provision that specifically relates to trade secrets. In order to become familiar with this topic and to include it in the contract, entrepreneurs can turn to law firms such as Brucher, Thltgen & Partner.

Three cumulative criteria make it possible to define what a trade secret is.

Other more common clauses aim to protect the know-how acquired by the worker. The non-competition clause provided for in the Labor Code, which is often used by employers, has undergone legal development a few years ago. “The latter prohibited the employee from pursuing a self-employed activity in a specific geographical area and in a specific sector for a maximum of 12 months after his departure. In practice, this provision did not fully meet the needs of employers. The case law has accepted the so-called extended non-competition clause, which was put into practice to balance the partial protection of the Labor Code. The special feature of this extended clause is that the ban can now also include working for a competitor in return for financial compensation. The ban remains limited in time and space.” says Catherine Wagener, a lawyer at the court. The exclusivity clause prohibits the exercise of an independent or dependent activity for another company or on one’s own account during the contractual relationship. Finally, the non-solicitation clause prohibits employees from embezzling customers or poaching employees or former colleagues.

Anticipate to deter breach of policy

These provisions are particularly dissuasive when they can protect the employer. It is essential to include these individually and separately in the contract and to detail them as detailed as possible with non-restrictive specific examples. Remedies are available for non-compliance. The employer can take civil action, which generally results in fines, or criminal action if they believe a criminal offense has been committed. Regardless of which clause is breached, it is up to the employer to prove the damage suffered. “However, it remains difficult for the employer to determine his damage specifically. The amount awarded by the judge will often be lower than expected.” concludes Catherine Wagener.

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