In the practice of many enterprises, it is not uncommon for valuable employees to switch to competitors. No one, of course, wants to lose specialists. There are frequent cases when competitors do everything to attract highly qualified employees, offering higher salaries, bonuses, and additional benefits. What to do in such situations to the employer? Of course, he, too, can increase his salary, appoint bonuses, provide other bonuses. But all this is very expensive. One of the ways to keep an employee in an enterprise is the so-called non-competition agreement. A sample of such a document, its contents, the company develops independently, taking into account the requirements of the law. This agreement is in addition to the employment contract. Let's look at its features.
General information
Of course, you need to conclude an agreement on non-competition with the employee only if there are risks. Signing it with each employee is impractical and very costly. The fact is that there is one big plus: when signing an agreement on non-competition, compensation is assigned to the employee.
As a rule, the parties to such a document are the enterprise represented by the head or individual entrepreneur and the citizen. Non-competition agreements between legal entities are practically not drawn up, since it is inexpedient and entails certain difficulties in resolving disputes in court.
Valuable employee
If the leader understands that the experience, knowledge, qualifications, organizational or intellectual abilities of the employee are of interest to competitors who are willing to do a lot to entice the employee, you need to quickly do something. Otherwise, the transition of such a person can lead to negative consequences for the business. Often the loss of even one or two highly qualified employees results in the loss of a market segment, the bankruptcy of the company. Such consequences can be prevented by signing a non-competition agreement.
Valuable disclosure risk
In the practice of domestic enterprises, the signing of a confidentiality non-disclosure agreement has long been no news. Meanwhile, such an agreement by no means always can provide adequate information protection. Often the information that employees receive and process is not a commercial or other secret protected by law, but is very important and valuable for the operation of the enterprise. It is not possible to protect such data by setting a privacy mode.
For example, we can talk about information collected by the employee on the basis of publicly available information. It is impossible to individualize it, to restrict access to it. But even if such attempts are made, and the case goes to court, the court will side with the employee. Indeed, absolutely everyone can collect such information, even without being on the staff of a particular company. Despite this, the receipt of such information by competitors can cause significant harm to the enterprise. As a rule, managers and administrative staff have this kind of information.
Document Features
Non-competition agreements are very common abroad. They are signed between workers and employers for a long time, in connection with which the judicial practice is developing very positively. In a number of CIS countries, the procedure for drawing up an agreement on non-competition, compensation, and tax has been fixed at the legislative level. In Belarus, for example, Presidential Decree of 2017 No. 8 is in force. Clause 5.6 addresses issues related to protection against competition.
I must say that in the Decree, the agreement under consideration refers to the type of civil law contracts, and not to additions to the labor contract. In this regard, in practice, questions and contradictions arise. According to experts, since the agreement on non-competition may contain conditions for the payment of compensation, the employer must withhold income tax from it. Not all company managers are ready to lay out large amounts for retaining an employee on the staff.
Domestic practice
In Russia, there are very few enterprises that draw up a non-competition agreement with an employee. Samples used by domestic companies are very similar to a model confidentiality non-disclosure agreement.
In practice, it is extremely difficult to hold a person liable for failure to comply with the terms of the agreement. The fact is that in the domestic legislation there are no norms supporting the legal force of such a document. At the same time, the constitutional right to a free choice of a place of work and profession remains dominant. In this regard, when drawing up an agreement on non-competition, an employer must rely mainly on the integrity of employees, take into account the experience gained and the current economic situation in the country.
Key conditions
To begin with, it must be said about the form of the agreement on non-competition. With partners it is or with employees - it does not matter. The agreement is made in writing (simple). This may be a separate additional document or part of an employment contract.
The validity period is set by the parties themselves. As a rule, an agreement is signed for 1-3 years, rarely for more than 5 years. This period often includes the period when a citizen left the enterprise. In such cases, he has the right to get a job in any company, except for direct competitors of the former employer.
It should be noted that even if the court recognizes the legality of the agreement, it has the right to change the term of its validity if it recognizes that it infringes on the interests of the other party.
The territory within which the contract will be valid should be chosen reasonably. Of course, the employer must protect his interests. But at the same time, he cannot limit the rights of a person to a free choice of a place of work.
Indication of too wide borders, for example, the whole country, can cause the agreement to be invalidated.
Compensation for the fulfillment of the terms of the contract is appointed by the head of the enterprise at his discretion. At the same time, it takes into account the practical value of the employee, assesses the possible damage during his transition to competitors. It is very important to maintain balance. It is necessary to determine the amount that will motivate the employee to remain on staff, but at the same time will not be too heavy a burden for the company.
Ministry of Labor clarifications
At the end of October 2017, the Ministry of Labor and Social Protection issued a Letter in which it tried to clarify issues related to the use of non-competition agreements.
The Ministry of Labor explained that if the labor contract provides for bans on the employee to perform certain actions for a certain period after dismissal, then they should be recognized as contradicting the current Labor Code and violating the constitutional rights of the employee. In particular, an employee cannot be forbidden to get a job with another employer, conducting similar activities as the previous employer in the same economic areas.
In support of its position, the Ministry cites legislative norms, according to which the subject has the right, at his discretion, to dispose of his abilities, labor skills and experience, choose his own profession, occupation. Freedoms and rights of a citizen can be limited exclusively by federal law and only to the extent that is required to ensure the protection of the constitutional system of the Russian Federation, the legitimate interests of others, and health. Morality of society, defense of the state.
In its explanations, the Ministry also notes that labor contracts should not contain conditions that worsen the position of the employee, reduce the level of social guarantees provided for him in the Labor Code and other labor law standards.
Alternative option
Officials indicate that the employer and employee may well issue an agreement on non-disclosure of commercial or other secrets protected by law. At the same time, any important information of a technical, economic, industrial, organizational nature, information about methods of professional activity of an employee can be attributed to the category of such information. Thus, you can protect any data that, in the opinion of management, is of particular importance and value for the normal functioning of the enterprise.
Nuance
Another important point that the Ministry of Labor draws attention to. In the explanations, officials indicate that all obligations enshrined in the employment contract and additional agreements are valid until the contract is terminated. After that, the employee does not bear any obligations to the employer, with the exception of cases expressly provided by law.