Whether senior executives or not, whether they master core technology or not, they will take liquidated damages and "unemployment" within two years to threaten workers on the grounds of competition restrictions. In doing so, the "circle" of competition restrictions has been expanded indefinitely, and workers who should not be restricted have also been imprisoned. This has made more workers lose the freedom to choose jobs and obtain employment and the space to rise, limiting the normal flow of labor and the activity of the talent market.
"I'm just an ordinary chef, but I have to sign a non competition agreement when I join the hotel." According to our report on December 10, in recent years, in order to restrict employees from changing jobs, some enterprises have signed non competition agreements with ordinary workers such as lecturers, property consultants, hairdressers and chefs in training institutions. For these workers, if they do not sign the contract, they will not be able to enter the job. If they sign the contract, they may face the risk of bearing high liquidated damages.
Enterprises have their own opinions on these non competition agreements. For example, chefs can cook signature dishes and know some purchase channels; Some trainers change jobs and take away the original courseware directly. The concern of enterprises is not unreasonable. The problem is how to avoid these problems.
Employers in news actually confuse the concepts of confidentiality obligation and competition restriction. In reality, some employers and workers often agree to keep trade secrets and competition restrictions in the same agreement, which gives people an illusion that confidentiality and competition restrictions are the same thing. In fact, there are essential differences between the two in terms of scope of application, subject of application, duration and specific requirements.
Confidentiality, as the name implies, is to keep the business secrets and intellectual property matters of the employer that you know. The non competition restriction means that after the labor contract between the laborer and the employer is dissolved or terminated, within a certain period of time, the laborer will not be employed by another employer that has a competitive relationship with the company that produces or operates the same kind of products or engages in the same kind of business, or he will start his own business to produce or operate the same kind of products or engage in the same kind of business. In a sense, the non competition restriction is a more stringent clause in the confidentiality agreement, and the scope of application of confidentiality is much wider than the non competition restriction.
The main differences between the two include that the applicable subjects are different - many workers who have access to the business secrets of the enterprise will sign confidentiality agreements, while competition restrictions are limited to "senior managers, senior technicians and other personnel with confidentiality obligations of the employer"; The content of emphasis is different - confidentiality focuses on not disclosing trade secrets, that is, not "saying", while competition restrictions require that workers cannot work in competitive units or run competitive businesses on their own, that is, not "doing"; The duration is different - the duration of confidentiality obligation is long. As long as trade secrets exist, relevant workers have confidentiality obligations, while the maximum duration of competition restriction does not exceed two years. More importantly, among the confidentiality obligations, the obligations of workers are limited to confidentiality, and they can change jobs and obtain employment. The competition restriction not only requires workers not to disclose secrets, but also restricts their employment.
In the above report, the employer drew an equal sign between the confidentiality obligation and the non competition restriction - whether they are executives or not, whether they have mastered core technology or not, they all use the non competition restriction as a reason to threaten workers with liquidated damages and "unemployment" within two years. In doing so, the "circle" of competition restrictions has been expanded indefinitely, and workers who should not be restricted have also been imprisoned. This has made more workers lose the freedom to choose jobs and obtain employment and the space to rise, limiting the normal flow of labor and the activity of the talent market.
There is no denying that some workers are indeed the "backbone" of the enterprise - some chefs leave, and the hotel may indeed have a straight reputation; Some "Tony teachers" once opened their own stores, they took more than half of the customers from their "old owners". However, how to avoid and solve this situation obviously cannot go beyond the legal provisions. Who should keep secrets, who should restrict competition, who can "come and go freely", cannot be decided by the enterprise, but must be decided by the law. The enterprise shall not infringe upon the rights of workers or increase the obligations of workers at will.
The current laws and regulations do not fail to take into account the interests of enterprises. If an employee divulges trade secrets, an enterprise will take a shortcut and gain benefits. In the Labor Contract Law, the Tort Liability Law, the Anti Unfair Competition Law and even the Criminal Law, the corresponding basis for litigation and relief channels can be found. Are strong enterprises still afraid of being infringed by workers?
The above experience of workers also reminds relevant departments that some legal provisions need to be further improved. Who should be restricted by competition? What is the specific scope and boundary of trade secrets? Only by refining relevant laws and regulations can we better settle disputes and prevent violations.
The important reason for the above enterprises to "restrict competition to make many workers" is that hard workers frequently change jobs, but it is not a rational and scientific way to keep people away by violating and squeezing the rights and interests of workers, being alert and threatening all the time. The harmony and stability of labor relations depend on the joint efforts of enterprises and workers. Honesty and law-abiding are common requirements for both parties. What is more worthy of our vigilance is the thinking and way of some enterprises that rely on the strong and bully the weak, steal concepts, and act willfully and recklessly. It is a principle that we must adhere to that the law has the final say and that the law gives fair and just protection to both parties in labor relations.
