Dismissal for disclosure of trade secrets
In modern business realities, the disclosure of information that is a trade secret of an enterprise is common. For disclosing a commercial secret, an employee may be dismissed under Article 81 of the Labor Code of the Russian Federation. However, practice shows that it is not easy to prove guilt in such cases.
The dismissal of a specialist will be legal if:
- the disclosure of commercial secrets affected information for which the appropriate regime has been established;
- the employee received a notification that the information is classified as a trade secret (CT);
- the employer has incontrovertible evidence of a CT scan by a specialist.
What needs to be done to ensure the safety of confidential information?
First, you need to draw up a local act and draw up a complete list of data that can be classified as a trade secret. The local act should contain methods of handling data and measures to protect confidential information. The emphasis must be on content.
Typically, such documents contain the following sections:
- basic terms and definitions that explain the concepts of trade secrets, disclosure, access procedure;
- the procedure for determining whether data belongs to a commercial secret;
- determining access to data that is CT;
- the procedure for handling data containing CT. For example, the introduction of a ban on working with documents outside the established premises;
- responsibility for the disclosure of CT.
The document should spell out the responsibilities of the personnel who have access to the data that make up the CT. Including the obligation to submit all documents of this kind in case of dismissal. The information that makes up CT is included in the appendices.
The list can include data on:
- internal documents;
- company strategies and plans;
- new methods, services, business processes, products, etc .;
- measures taken to prepare for the establishment and development of new relationships, including commercial and financial;
- repositories containing storage media of important information, device prototypes, test samples, etc .;
- current security regimes, including provisions on access control;
- existing and planned for commissioning security systems.
The document should pay special attention to records of a financial and economic nature (planned and actual indicators of profit), information on the balance sheet of the enterprise, etc. Trade secrets can also be made up of a list of clients and agreements in force with them, detailed information about clients, including debts.
Special attention is paid to information security. In particular, the prohibition on disclosure should apply to:
- any data concerning employees and their families;
- information about the personal property of employees and managers;
- data on official vehicles, routes;
- data on wages, accounts and current loans.
What information cannot be considered a trade secret?
According to Article 5 of the Law "On Commercial Secrets", the following information cannot be included in it:
- data included in the constituent documents, as well as data stored in state registers;
- data that allows you to conduct business;
- information on the negative impact on the environment, as well as data on compliance with fire safety;
- the number of employees, the established payroll system, labor conditions and safety, vacancies;
- data indicating the presence of debt to employees, including social benefits;
- records indicating a violation of the law;
- a list of persons who can conduct business without obtaining a power of attorney on behalf of the legal entity.
Usually, all data related to trade secrets are approved by the head who issues the corresponding order. Each employee must familiarize himself with all the data containing information about CT and put a signature confirming the fact of familiarization.
It is important to check employment contracts to determine if there is a nondisclosure obligation. In the absence of such conditions in the contracts, it is recommended to introduce additional agreements. The employer must take into account that it is he who is obliged to prove the existence of signed agreements on non-disclosure of CT.
To ensure the safety of information that is CT, the employer should limit the number of employees who have access to the data. All these employees should be recorded.
SearchInform FileAuditor allows you to control employees with privileged access to files. Learn more.
The employer himself must contribute to the safety of CT. If confidential information is published on the official website of the company, the court is unlikely to consider their dissemination for the disclosure of CT.
Documents, including electronic versions, should be marked "commercial secret" with information about the name and location of the company in accordance with Art. 10 hours 1 item 5. In the digital version, the neck is affixed in the footers. In the absence of this stamp, the court may consider the dismissal of the employee who violated the CT unlawful.
The employer is obliged by his own means to provide everything necessary to comply with the confidentiality regime, including the provision of storage for confidential documents (safe).
What is trade secret disclosure?
The disclosure of CT refers to a single violation related to labor obligations. This issue is covered in detail by Article 81 of the Labor Code of the Russian Federation.
CT is considered disclosed at the moment when the employee has transferred confidential information to a third party. Thus, it does not matter whether the information was received (read) or not.
To fire an employee, you must first certify that the secret has been disclosed. In accordance with Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction may be imposed on an employee. On the fact of disclosure of information, an investigation is carried out within the company with an explanation. The manager should submit a request in which you need to indicate the clause in the employment contract or regulation violated by the employee. After familiarization, the employee puts his signature on the request form. He has the right to refuse acquaintance. In this case, it is necessary to draw up an act signed by at least two witnesses.
The explanatory note is written within two days. Even in the event of a refusal, the employer must comply with this deadline and only then bring the employee to justice. If, at the end of two days, an explanatory note was not provided, it is necessary to draw up an appropriate act.
Upon the disclosure of valuable information, a commission is created, which must:
- to study the circumstances associated with the disclosure of CT;
- establish a causal relationship;
- charge the offender or find out if he has an excuse.
The Commission needs to establish the fact that the trade secret is known to the specialist when he signs an employment contract. The Commission also determines the severity of the consequences for the employer arising from the violation of the CT. The result of the investigation is a protocol, which should contain the conclusion and recommendations for the employer. The Commission has the right to recognize the employee as not guilty of data breach.
Based on the results of drawing up the protocol, an order is drawn up, with which the specialist should be familiarized. If he refuses to sign it, it is necessary to issue an act of refusal.
It is important to adhere to deadlines with regard to dismissal upon disclosure of valuable information to the employer. From the moment a violation is established, a specialist can be dismissed within a month. This period does not include sick leave or vacation. An investigation can be started within 1 month from the moment the violation was discovered. An employee can be dismissed within 6 months from the date of the violation (part 3 of article 193 of the Labor Code of the Russian Federation).
How to prevent the disclosure of trade secrets
It is very difficult to prove the fact of disclosing a commercial secret in court. If a specialist simply sends files with valuable information to competitors using mail clients, the system administrator can easily fix such violations. In practice, however, “drain” is a planned course of action. Often the employer has to establish secret surveillance of specialists suspected of disclosing classified information.
An employee can copy files to a USB flash drive if such an action is allowed according to the instructions. Next, transfer the media to a third party and refer to the loss of the flash drive. It is difficult to prove such malicious acts in court.
DLP systems help to notice suspicious actions of employees that can lead to information leakage. Learn more.
Often employers allow the possibility of sending valuable data to employees' personal e-mail boxes. In this case, the likelihood of information theft by cybercriminals from an unprotected mailbox remains. At the same time, the postal agent, in accordance with Article 2 No. 149-FZ, acquires the status of the owner of information sent by users, which can already be recognized by the court as disclosure of valuable information.