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Confidentiality agreement with the employee. Features of drawing up an agreement on non-disclosure of trade secrets Employment contract with trade secrets sample

The issue of trade secrets is regulated by Article 3 of Federal Law No. 98-FZ. In particular, this definition means information security mode, the disclosure of which could be the main reason for an increase in the company’s financial costs or, less likely, an increase in profits. Confidentiality allows not only to maintain, but also to stabilize the company’s position in the market for goods and services, as well as to obtain certain commercial benefits.

Based on this, any information about the company’s work activities that is of significant significance can be classified as a trade secret, and its disclosure can have a significant impact on the further prosperity of the company.

Necessity

In a situation where the direct employer, in the process of concluding an employment agreement, insists that the hired employee sign a confidentiality (trade secret) agreement, then we can speak with confidence about his measures regarding the preservation of important information.

It is worth noting that it is not uncommon for an agreement to serve as the only instrument for protecting state, banking or even tax secrets, to which a limited number of citizens have access. This option is possible if there is a need to fill a position.

For example, a situation where a law enforcement officer is forced to replace his supervisor, who has gone on vacation, as chief of police.

Hired employees of private companies, for example, a commercial research institute, do not always have access to trade secrets, but they may encounter them when signing any documents, so in order to avoid misunderstandings (leakage of important information), this document is signed.

Information that is not a trade secret

A confidentiality regime cannot be established by citizens who conduct business activities regarding the following information:

As of today, this list is exhaustive and no additions are planned in the near future.

Types of agreements

As such, types of agreement are not provided for by current legislation, but at the same time, an agreement can be:

  • unlimited(upon signing it, the employee undertakes to keep the trade secret throughout his life);
  • temporary(for example, a secret must be kept secret for 2 years, after which it has no value.

In addition, the agreement may take the form of a banal receipt in which one of the parties undertakes to keep a certain secret in the strictest confidence, temporarily or throughout his life.

It is important to remember that each employer has every right to develop its own exclusive form of non-disclosure agreement, provided that it does not violate human rights and does not contradict current legislation.

The current legislation does not provide for certain rules that would regulate the procedure for concluding an agreement or a unified form.

It is not uncommon for an agreement to be formed as an additional annex to a current employment contract (when concluding an agreement between contractors, we can talk about).

The law does not provide for a single model of this agreement, but traditionally it is an analogue of an agreement or some kind of contract.

In any case, its structure is almost identical:

  • introductory part, which includes the name of the agreement, exactly when and where it was drawn up, the purpose of its signing;
  • subsection “Subject of the agreement”, which includes all the necessary confidential information;
  • a subsection that specifies the rights and obligations of the parties;
  • the “General Information” subsection, which contains a detailed algorithm for the actions of each party when a particular situation occurs (for example, the actions of an employer when an employee tries to divulge a trade secret);
  • subsection “Responsibility of the Parties”, it indicates the possible liability of the employee, which may arise when attempting to disclose a trade secret;
  • Finally, the details of the parties are indicated and signatures are placed.

Sample filling

Agreement

It is necessary to understand that the subject of the agreement is information that constitutes a trade secret, namely:

  • a complete list of specific information is approved exclusively by the direct employer and certified by the relevant order;
  • after this information is indicated that is not related to confidentiality.

The contract must contain information:

  • what secret must be kept;
  • the stipulated rights and obligations of each party;
  • the period of validity of the agreement;
  • what will happen if the secret is not kept.

Commitment

The contract must specify the obligations of the parties, namely:

It is important to remember that disclosure of secrets is considered to be any type of communication of confidential information to one third party, no matter in full or in part.

Subscription

A non-disclosure agreement obliges the employee to keep trade secrets in the strictest confidence. In simple words, by signing an agreement, the prevention of possible leakage of important information for the company in favor of any third parties is guaranteed.

It is important to remember that a subscription can be of several types, namely:

  • unilaterally(when one person transmits important information to the second, but at the same time there is a need for its sacrament);
  • bilaterally(both parties exchange secret information that should not become known to third parties).

The document is sealed with a signature.

Disclosure of confidential information in full or in part entails not only administrative, but also criminal liability.

In a situation where information was leaked to the masses through negligence, the maximum punishment in such a case may be disciplinary action. However, there is a nuance here: disciplinary action may entail dismissal from work, therefore mildness of punishment is considered conditional.

In a situation where there may be a leak of confidential information intentionally or for personal and selfish reasons, possible further consequences directly depend on the circumstances that arise. For example, the disclosure of a commercial production secret, according to Article 1472 of the Civil Code of the Russian Federation, implies the imposition of obligations on the violator to compensate for material losses.

Criminal liability can arise only in the case when information related to commercial or other secrets protected by current legislation is subsequently going to be deliberately disclosed for use for personal gain. According to Article 183 of the Criminal Code of the Russian Federation, the maximum punishment can be 7 years prison sentence.

If we are talking about a violation of keeping a trade secret, then the punishment is provided for in Article 13.14 of the Code of Administrative Offenses of the Russian Federation. According to this article, a violator of secrets will have to pay a fine of 500 to 1,000 rubles for ordinary employees, and from 4,000 to 5,000 rubles for officials.

In a situation where the disclosure of a trade secret was necessary solely to eliminate possible competitors, the violation falls under (so-called unfair competition) either Art. 178 of the Criminal Code of the Russian Federation (possible limitation of the level of competition).

How to set trade secret mode? Find out in this video.

Due to growing competition in the market and maintaining their positions, organizations are trying to apply some know-how in their work or have some competitive advantages. Therefore, when hiring new employees, in addition to concluding an employment contract with them, an obligation of non-disclosure of trade secrets may be additionally signed.

Personnel security when hiring service personnel and new employees is a very important component. It is very important to hire new employees competently and legally correctly so that the employer does not have problems in the future. All documents must be completed correctly and in proper form, starting from the employment application form and ending with the dismissal order.

The employee’s first working day is an introduction to his workplace, team, work and job responsibilities, as well as internal regulations and regulations governing the company’s labor activities. These may include the following documents:

  • Job responsibilities.
  • Instructions.
  • Complete initial training, as evidenced by his signature on the
  • Etc.

In parallel with this, the HR department must prepare a number of documents required to document employment in the company. A number of documents must be signed by both parties: both the employer and the new employee. Please note that before collecting an employee’s personal data, he must sign a consent to receive and process his personal data.

Basic documents that must be signed upon admission:

  • In some cases, when accepting materially responsible persons, an additional contract may be concluded.
  • Other agreements.

One of the very important documents that should be concluded with an employee for security purposes and maintaining company secrets is a non-disclosure agreement of confidential information. Not all companies use this document in their work, but this bureaucratic one is very important. Such a document does not have to be signed by all employees, only those who have access to such information. So, for example, signing such a document with a gardener can be very absurd.

How to set trade secret mode

A trade secret is a regime in which the confidentiality of information is maintained, as a result of which an organization, under possible or existing circumstances, is able to increase its income, maintain its position in the market for services or goods, avoid unjustified expenses, or obtain other commercial benefits.

In order to determine information that will be a trade secret, an organization must first of all do the following (in accordance with Article 10 of the Federal Law “On Trade Secrets”):

  • Highlight confidential information.
  • Restrict access by establishing control over information and the procedure for handling it.
  • It is necessary to take into account the circle of persons who have the right to access the secret.
  • To regulate labor relations with employees, taking into account the non-disclosure of information by establishing standards in the employment contract, as well as on the basis of a civil law agreement with contractors.
  • All magnetic media that contain a trade secret must be marked with the appropriate stamp, or the documents must be added to the list of such documents.

All of the above measures must be applied in combination, and the organization must draw up the following documents:

  • Regulations on trade secrets, which must take into account measures of handling, storage, rights of access to confidential information, etc.
  • Sign a non-disclosure agreement with employees regarding confidential information.

Drawing up an obligation of non-disclosure of trade secrets is required when an enterprise or organization wants to protect itself from the dissemination of any secret information about its activities. The obligation can be drawn up in the form of a separate document, as an annex to the employment contract, or included directly in its text.

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Why do you need a non-disclosure agreement?

First of all, through this document, enterprises operating in the commercial sector (especially in the manufacturing sector) seek to protect themselves and their products from attacks by competitors. The obligation allows you to make a promise from employees not to distribute a trade secret that has fallen into their hands, which most often is essentially

  • secret innovative ideas,
  • unpatented inventions,
  • information about the company’s pricing policy and profits,
  • data on concluded contracts and transactions,
  • further plans and strategy for the development of the enterprise.

It should be noted that companies, for their part, should also strive to ensure the safety of sensitive information by limiting access to it. Otherwise, if it comes to legal disputes, it will be very difficult to identify the source of disclosure, and it will be completely problematic to prove the guilt of this or that employee.

Who draws up the document

The commitment is written on behalf of an employee of the company, but, as a rule, its basis is developed

  • legal advisers of the enterprise (but there may also be lawyers “from outside”)
  • or direct management.

In any case, the specialist drawing up the document form must have the necessary level of knowledge for its competent execution, and must also be familiar with the legislation of the Russian Federation in the field of civil, administrative and labor law. We should not forget that the document is legally significant and, if necessary, can be demanded in court.

Who should sign the pledge?

For obvious reasons, not all employees of enterprises and organizations are given access to classified information. Typically, such information is held by technical specialists, employees of financial departments, and those who deal with documents. It is these staff representatives who most often write an agreement on non-disclosure of trade secrets. But sometimes, companies require all employees to sign this document.

When is an obligation of non-disclosure of trade secrets issued?

In general, this paper is written directly during employment. However, the option of writing a document during the period of work, for example, when transferring to another position or in cases where previously such a document was not on the list of required signatures, is not excluded.

It must be remembered that before requiring an employee to sign an obligation, the employer (also against a signature) is obliged to familiarize him with the full list of information related to a trade secret.

What happens if you break your non-disclosure obligation?

Violation of a signed document by an employee threatens him with a variety of types of punishment, ranging from dismissal and compensation for material damage, up to criminal prosecution. It all depends on what kind of information was disclosed, as well as what damage the company suffered from its dissemination.

Rules for drawing up a document

There is no standard, unified form of obligation, so enterprises and organizations can write it in any form, based on their needs. The company can also develop a document template, but in this case it must be approved in the company's accounting policies. Regardless of which path is chosen, the commitment must include information about

  • company name,
  • the date and place of its compilation,
  • employee personal data,
  • as well as the obligations themselves.

The volume of the document is not limited, so one should take into account the fact that the more carefully the main text is developed, the greater the guarantee that it will not be violated, and even if it is, the employer will be able to prove this fact in court.

Rules for drawing up an obligation of non-disclosure of trade secrets

The obligation can be written personally by the employee by hand (under dictation from the responsible employee of the enterprise) or printed on a computer. It can be issued on a regular A4 sheet or on company letterhead.

The only immutable rule: the document must contain the employee’s original signature.

It is issued in a single copy.

After drawing up and signing the obligation, it, along with other personal papers, is stored in the employee’s personal file.

  1. The name of the enterprise is written at the top in the middle, the line below is the place where the obligation was drawn up (city or other locality) and the date.
  2. Next is the name of the document.
  3. In the main part, first fit
    • last name, first name, patronymic and position of the employee,
    • number and date of his employment contract,
    • as well as the period during which he must keep company secrets after dismissal.
  4. Next comes the text of the obligation itself - here you can enter any information that the employer considers necessary to include.

    Among other things, it is recommended to indicate that upon dismissal, the employee is obliged to hand over all information in his possession to the responsible persons, and in case of violation of this obligation, he will suffer appropriate punishment (strictly within the framework of the current law).

  5. Finally, the document must be signed by an employee of the enterprise (indicating his position and deciphering the signature).

A non-disclosure agreement is signed by the parties entering into a commercial relationship in order to maintain the confidentiality of information transmitted by one party to the other. The agreement provides protection against the following risks:

a) obtaining third party access to information

b) sale of information, incl. competitors

c) exclusion of the possibility of publishing data

As a rule, a non-disclosure agreement is signed at the same time or before the signing of the main agreement between the parties, which may be an agreement for the provision of some services, a purchase and sale agreement, etc. As part of the agreement, the recipient undertakes to use the received confidential information strictly for the purpose of implementing the main agreement.

The receiving party also undertakes to ensure the safety of information throughout the term of the agreement and for three years thereafter. In this case, the agreement may prescribe requirements for storing information, both for documents on paper and for electronic documents (specific hardware and software systems).

Functions and objectives of the agreement

Unfortunately, the agreement is not a 100% guarantee of non-disclosure of information by the receiving party, however, the company disclosing confidential information has the opportunity to prove the recipient’s involvement in the dissemination of data and recover from him the losses incurred by the company, incl. losses associated with lost profits. However, practice shows that it is extremely difficult to prove the guilt of the recipient of information in court. In our opinion, this type of agreement in Russia is more of an educational (precautionary) nature rather than truly protecting the interests of the disclosing party.

A separate type of non-disclosure agreement is an agreement on non-disclosure of personal data. The concepts of trade secret and personal data should be distinguished, since the protection of personal data is regulated by Federal Law No. 152-FZ of July 27, 2006, and the protection of trade secrets is regulated by Federal Law No. 98-FZ of July 29, 2004.

If you want to secure the company and reliably protect confidential information, enter into a non-disclosure agreement with the employee on trade secrets. We will tell you how to compose it in the article.

What documents should an organization have on non-disclosure of trade secrets?

The definition of a trade secret is given in Art. 139 of the Civil Code of the Russian Federation, part one. This is information that is not a secret of state importance, but is of commercial value due to the fact that it is not known to third parties. Such information is not publicly available, and its owner takes certain actions to keep it secret.

A non-disclosure agreement on trade secrets is drawn up with employees who have access to secret information. Possession of information that constitutes a trade secret, as a rule, provides certain competitive advantages and, as a result, allows one to receive material benefits. Therefore, the owner of them is directly interested in preserving and non-disclosure of trade secrets.

For this purpose, enterprises that have their own production and organizational secrets establish a trade secret regime. At the same time, they are developing non-disclosure documents that regulate the work with such information, as well as establishing responsibility for violating the ban on disclosure. Most often, access and responsibility are stipulated in the employment contract as part of its basic terms.

Documents on non-disclosure of trade secrets are not mandatory. That is, if the company does not have such documents, then the labor inspectorate or other regulatory body will not fine the company for this.

Documents on non-disclosure of trade secrets are developed and approved by the company in the interests of the employer and on his initiative. The purpose of their development is to protect confidential information and establish responsibility for its disclosure for those officials who, by virtue of their official position, are allowed to have access to this type of information.

Obligation of non-disclosure of trade secrets

Documents on non-disclosure of trade secrets are not mandatory. That is, if the company does not have such documents, then the labor inspectorate or other regulatory body will not fine the company for this. Documents on non-disclosure of trade secrets are developed and approved by the company in the interests of the employer and on his initiative. The purpose of their development is to protect confidential information and establish responsibility for its disclosure for those officials who, by virtue of their official position, are allowed to have access to information of this kind.

Table. Documents on non-disclosure of trade secrets

Title of the document

A comment

The document regulates the procedure for working with confidential information:

  • a list of such information;
  • the procedure for determining information constituting confidential information;
  • measures taken by the company to protect such information;
  • procedure for access to information;
  • a list of officials who have access to such information;
  • the procedure for working and storing such information;
  • rights and obligations of the parties;
  • responsibility for disclosure of confidential information

Important! Employees who have access to trade secrets must be familiar with the Regulations upon signature

The company must maintain records of persons who are given access to confidential information. To do this, we recommend approving an order with a named list of employees who are granted such access. When hiring new employees, the following order must be issued for each employee with clearance

An employee who gains access to confidential information must agree not to disclose it.

This obligation can be formalized in the following form:

  • agreement on non-disclosure of trade secrets;
  • non-disclosure agreement of trade secrets;
  • obligation of non-disclosure of trade secrets

The employee's obligation to maintain confidentiality must be specified in his employment contract. This condition in the contract can be stated as follows: “The employee undertakes during the validity period employment contract and for _(specify the period)__ years after its termination, not to disclose the legally protected trade secret of the Employer, which became known to him in connection with the performance of his job duties.”

Trade secret stamp

All material media containing confidential information must be marked with this stamp indicating the name of the company and its location

How to draw up a non-disclosure agreement for trade secrets

In some cases, it is advisable to conclude a separate bilateral agreement with an employee who has access to information constituting a trade secret. A trade secret agreement is drawn up on the basis of the Regulations on Trade Secrets approved by the company. From this regulation information is taken about specific confidential information to which the employee with whom the agreement is signed receives access.

Regulations on trade secrets

Non-disclosure agreement for trade secrets sample

A sample non-disclosure agreement for trade secrets is drawn up in writing. The document establishes the responsibilities of the employee and the employer. It must include a condition that upon dismissal the employee must hand over all media containing confidential information and establish the validity period of the non-disclosure agreement. As a rule, the contract is valid for the duration of the employment contract. The final part of the agreement indicates the details and signatures of the parties.

Contract (agreement) on non-disclosure of trade secrets sample

Download sample

What conditions cannot be included in a non-disclosure agreement?

An agreement on non-disclosure of trade secrets with an employee is drawn up in free form, so employers believe that it can specify any conditions aimed at limiting access and preserving trade secrets. Therefore, in practice, many errors can be found in such documents.


Table. What conditions cannot be included in a non-disclosure agreement?

What should not be included innon-disclosure agreement

Explanation

Prohibition to work in other companies engaged in similar activities

The employee independently decides which company to work for, and the employee cannot be prohibited from leaving for a competitor

Prohibition to work part-time in companies engaged in similar activities

An employee has the right to perform other work in another company in his free time from his main job on the basis of a part-time employment contract, the employee chooses the field of activity of the second employer independently, this can also be done by competitors

Prohibition from running your own business with a similar type of activity

An employer has no right to control an employee's business

Prohibition on disclosing the amount of wages: purpose, timing and procedure for conducting "> wages

An employer cannot prohibit an employee from distributing his own personal data. For example, an employee has the right to submit a certificate of income to the bank to receive a loan or confirm his income with a certificate to obtain a visa; an employee can also tell his friends and relatives about his level of income, so the amount of his own income cannot be classified as confidential information

Classification as confidential information of information that cannot be classified as such in accordance with the law

In Art. 5 of Federal Law No. 98-FZ of July 29, 2004 lists information that the employer cannot classify as confidential

The employer should be aware that the concept of a trade secret according to the law does not include:

  • constituent documents and charter of the company;
  • documents confirming the right to engage in entrepreneurial activity;
  • information on the number of employees, their wages and working conditions;
  • information about the availability of vacant jobs;
  • documents confirming the solvency of the enterprise, payment of taxes and obligatory payments;
  • information on the participation of company officials in joint-stock and other companies, organizations of any form of ownership in the field of entrepreneurship;
  • information about environmental pollution, violations of safe working conditions, antitrust laws, rules and regulations for the sale of products that cause harm to the population, and other violations of current laws.

The employer must remember that it is possible to hold an employee accountable for disclosing secrets only if the documents establishing such a regime are correctly drawn up.

Documents on non-disclosure of trade secrets are developed and approved by the company in the interests of the employer and on his initiative. The purpose of their development is to protect confidential information and establish responsibility for its disclosure for those officials who, by virtue of their official position, are allowed to have access to information of this kind.