Disclosure of trade secrets after dismissal of an employee
In the poll about whether obligations to disclose trade secrets are in effect after an employee's dismissal, it remains controversial. Most large companies oblige the employee, after termination of employment, to keep confidential company information, not even directly related to trade secrets, but, based on the letter of the law, such an obligation has no legal force.
General rules for keeping trade secrets
A trade secret is a legally protected amount of information, its value is created due to the unknown to third parties. The employing company, relying on the norms of civil and criminal law, has the right to protect trade secrets and personal data from the attention of third parties and employees.
Illegal collection and disclosure of commercial secrets can become the basis for:
- compensation for damage caused in the framework of civil proceedings;
- criminal prosecution for disclosing banking or commercial secrets.
But, as practice shows, employers are often not limited by the norms of the law "On Personal Data" or "On Trade Secrets", introducing their own mechanisms of responsibility, for example, restricting the right of citizens to work in other companies after dismissal in order to avoid disclosing trade secrets. This possibility is due to the fact that the state establishes a general framework for regulating the regime of commercial secrets, paying much more attention to the protection of state, banking, lawyer or official. The unresolved issue of restricting the rights of employees due to the fact that they have become aware of personal data or commercial secrets of the company creates an opportunity for widespread private rule-making, which has been repeatedly highlighted in judicial practice. So, in case No. 22-1079 \ 19, considered by the Supreme Court of the Chuvash Republic, it was directly noted that Sberbank, with its internal documents, can impose only disciplinary, but not criminal, liability for acquainting the user with the data of the personal accounts of the bank's clients, although and related to banking secrecy or personal data.
The law "On commercial secrets" in subparagraph 2 of paragraph 3 of Art. 11 obliges the employee not to disclose the commercial secrets of both the employer and his counterparties, and without their consent not to use this information for personal purposes during the entire period of the commercial secret regime, including after the termination of the employment contract. In the previous version of the norm, the term for limiting the disclosure of commercial secrets was three years.
But in order to implement this norm of the law, the employer will have to introduce a commercial secret regime at the enterprise. This requires:
- adopt a regulation on commercial secrets;
- compile a list of information of a confidential nature and issue it as an annex to the regulation, including information constituting a commercial secret;
- to introduce into labor contracts the terms of non-disclosure of commercial secrets or personal data or sign additional agreements to them.
The employee needs to explain in detail the conditions for working with trade secrets and personal data and receive his written confirmation that he is not only familiar with them, but also fully understands his responsibility.
On the other hand, Art. 183 of the Criminal Code of the Russian Federation, prosecuting for illegal receipt and disclosure of commercial secrets, assumes that liability extends not only to the employee, but also to any other person who illegally obtained personal data or data related to commercial secrets, or disclosed them.
Legality of the obligation not to disclose secrets after dismissal
The legality of a non-disclosure obligation for personal data or trade secrets will be controversial in situations where the employer adds additional requirements to the general non-disclosure obligation of trade secrets and personal data.
These requirements may include the following:
- refuse to get a job in other companies, if you need to use the knowledge and skills, other components of trade secrets, obtained from a particular employer;
- refuse to get a job with any competitors;
- not to conclude an agreement at a new place of work with any of the counterparties of the first employer.
All these requirements limit the legal capacity of a citizen and are not legal. Even if a commitment is signed to comply with them, it is impossible to force his employee to comply with them in court. There is Clarification of the Ministry of Labor of the Russian Federation No. 14-2 / V-642 "On an additional agreement on non-competition", where such conditions of agreements with dismissed employees are expressly called not applicable.
The law provides for the possibility of using the company's trade secrets after dismissal, for this it is necessary to obtain the consent of the employer and agree with him the conditions for using confidential information. Such a situation may arise, for example, when a dismissed employee continues to fulfill certain orders of the employer on the basis of a service agreement, within the framework of such a document it is permissible to use trade secrets, but disclosure of personal data is unacceptable.
It should be borne in mind that after dismissal, an employee fulfills obligations to maintain trade secrets only to the extent that they were entrusted to him during the period of work in the company. Changes in the list of confidential data related to trade secrets or the conditions for their use after dismissal will not affect the scope of his obligations in any way. If the list of confidential information contains information that cannot be attributed to this category on the basis of the law, the establishment of the obligation not to disclose it is illegal and the employee has the right to appeal against bringing him to any form of responsibility for this violation.
The law "On commercial secrets" in Art. 5 explicitly names these categories of data:
- contained in the constituent documents;
- contained in the documents on the basis of which entrepreneurial activity is carried out;
- on the composition of the property of a state unitary enterprise or municipal unitary enterprise, a state institution and on their use of funds from regional budgets;
- on environmental pollution by the enterprise and compliance with environmental safety requirements, the state of fire safety, sanitary-epidemiological and radiation conditions, food safety and other factors that have a negative impact on ensuring the safe operation of production facilities, public safety;
- on the number of employees, the staffing table, the wage system, on working conditions, harmful and dangerous, or on labor protection, on the indicators of industrial injuries and occupational morbidity;
- about the debts of companies for payment of wages and social benefits;
- about the company's violations of the laws of the Russian Federation and about whether it or its management was held accountable for such violations.
In addition to the positions named in the law, information disclosed in accordance with the requirements of the law, for example, on material facts of the economic activity of a joint-stock company, on affiliated persons, contained in the annual report, cannot be classified as a commercial secret.
The practice of applying the norm on the safety of commercial secrets
Non-disclosure obligations are sometimes applied not only in labor, but also in civil law relations. In Russia, there is a practice when employees who are actually in labor relations with an organization conclude civil law contracts with it for contracting or providing services. This enables the company to save on taxes and conclude practically fixed-term employment contracts in situations where the law does not allow it. Despite the fact that the FTS pursues this practice, recognizing such contracts as actual labor relations and adding additional taxes, they continue to occur in regional practice. Such contracts also sometimes include a norm on non-disclosure of trade secrets for a certain time after their expiration.
In judicial practice, there are cases when employees cooperating with a company on such conditions, after the expiration of the term of a civil law agreement, transferred data related to confidential information to third parties and were brought to justice. Thus, the confidential data of the MTS company was stolen by a former employee, to whom the current employee gave his login and password to enter the information network of the branch. The current employee did not bear responsibility. The person who stole the information received a suspended sentence.
In judicial practice, there are cases when employees, after dismissal, not only disclosed commercial secrets that became known as a result of their job functions, but also, using the saved service login and password and remotely connecting to the corporate network, stole information for sale on the darknet. Such crimes are usually prosecuted under a combination of articles on disclosing commercial secrets and unlawful access to computer information.
Information related to a valid trade secret - business plans, R&D results - is rarely the subject of legal proceedings. The overwhelming majority of cases are related to the theft and unlawful distribution by dismissed employees of personal data of clients, client databases and other information intended for resale and of interest to an unlimited number of persons.
Liability for such crimes related to the disclosure of trade secrets or personal data is usually limited to conditional, companies are denied compensation for damages, since it is extremely difficult to prove the true value of the stolen data.
08.12.2020
