Brief facts of the case
Mr. He and Company A have signed a "Labor Contract", and the term of the last labor contract is from September 1, 2021 to August 31, 2024.
On December 6, 2021, Mr. He signed the Employee Confidentiality Agreement. On the 10th of the same month, He and many others spoke in a WeChat group called "Yifang Employee Group": ......Under the header of the employee confidentiality agreement, a non-compete agreement is secretly included. Due to the issue of income from work, it is necessary to sign passively. I do not recognize the signing of the agreement, and the company will not return it for invalidation. I hereby declare that I work in the company's work group.
On January 13, 2022, Mr. He submitted a resignation application to Company A, stating that he had submitted a resignation request to the company for personal reasons. On the same day, Company A handled the resignation handover, which included the "signing and restriction time of the non-compete agreement (January 28, 2022 to January 27, 2023)".
On January 29, 2022, Company A issued a notice letter to Mr. He by express delivery, stating: ......The non-compete clause will take effect after you leave the company (i.e. from 29 January 2022) in Shanghai and the non-compete industry ...... the basic telecommunications industry, the limitation period is 1 year. ......
On January 30, 2022, Company A transferred 2,590 yuan to He, and the purpose was shown as "non-compete compensation in February". On February 11, Mr. He returned the above-mentioned money to Company A.
The two parties had a dispute over whether the non-compete agreement was applicable to He, and then sued the court.
Court Views
The court held that the purpose of imposing a non-compete restriction on an employee is to protect the employer's trade secrets and confidential matters related to intellectual property rights, provided that the employee has a duty of confidentiality. Therefore, Company A should provide sufficient evidence that it has specific trade secrets and that He may have access to such trade secrets.
Company A has made a more detailed explanation of its trade secrets, mainly pointing out that the configuration of the community broadband line equipment it invested in and constructed and the customer list of its jurisdiction, especially the list of its self-extended customers, are its trade secrets, and it has also pointed out that the technical solution, hardware management, business plan, marketing plan, company SOP and customer SOP are also its trade secrets.
From the ascertained facts of the case, it can be seen that the configuration of community broadband line equipment and the customer list mentioned by Company A are actually technical information and business information under the direct management and control of China Unicom Shanghai Branch, and are not trade secrets exclusive to Company A that can bring Company A a unique competitive advantage. As for Company A's claim that the technical solutions, hardware management, business plans, marketing plans, company SOPs, and customer SOPs were also its trade secrets, these items were too broad, and Company A did not provide evidence to prove that the above-mentioned project information constituted trade secrets that needed to be kept confidential, nor did it provide evidence to prove that He X had access to other trade secrets. Based on the above analysis, Company A's existing evidence and the statements of both parties are not sufficient to prove that He is "other personnel with confidentiality obligations".
Legal Commentary
The non-compete system itself is an institutional arrangement made by the legislator after weighing the interests of the employer's trade secrets and the employee's freedom of choice of employment, and the non-compete system objectively constitutes a certain restriction on the employee's freedom of choice, so the subject of the non-compete obligation should be strictly limited to the scope of the subject prescribed by law, otherwise it will not only affect the legitimate employment rights of the employee, but also affect the normal flow of labor resources in the whole society.
In this case, Company A failed to adduce conclusive and sufficient evidence to prove that He was a qualified subject of the non-compete obligation, which was in fact a violation of the mandatory provisions of the law by extending the non-compete agreement to ordinary employees. In this case, He asserted that he was not a qualified subject of the non-compete obligation, so the non-compete agreement signed by the two parties should be invalid and had a factual and legal basis.
Relevant legal provisions
Labor Contract Law.
Article 23 The employer and the employee may stipulate in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights.
For employees who are obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the employment contract or confidentiality agreement, and stipulate that after the termination or termination of the labor contract, the employee will be compensated monthly during the non-compete period. If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement.
Article 24 The persons subject to non-compete restrictions shall be limited to the senior management personnel, senior technical personnel and other personnel who are obliged to maintain confidentiality. The scope, region, and duration of the non-compete restriction shall be agreed upon by the employer and the employee, and the agreement on the non-compete restriction shall not violate the provisions of laws and regulations.
After the dissolution or termination of the labor contract, the period of non-competition for the personnel provided for in the preceding paragraph to go to another employer that has a competitive relationship with the unit that produces or sells the same kind of products or engages in the same kind of business, or starts their own business to produce or operate the same kind of products or engage in the same kind of business, shall not exceed two years.
Case: Shanghai No. 1 Intermediate Court (2023) Hu 01 Min Zhong No. 5670.
Wang Wen, lawyer.
His main practice areas are human resources, intellectual property, taxation, corporate governance, construction and real estate, finance, data security, personal information protection, and related civil and commercial matters** and criminal defense.
He is the author of two books and one translation.
Possess **, as well as performance agent qualifications.
The working languages are Chinese, Japanese and English.
E-mail: legalwangwen@163com