The period of de-confidence means that the employer and the laborer who has mastered the trade secret must agree to notify the employer at a certain time before leaving the company. The employer can transfer the employee to a position that does not require confidentiality to ensure that the employee is no longer in contact with the new one. Trade secrets, employees work for a certain period of time in a position that is not classified, and the employee can officially leave the company after the expiration of the period. Therefore, the "denomination period" can also be referred to as the "advance notice period".
Article 2 of the Notice of the Ministry of Labor on Several Issues Concerning the Movement of Enterprise Employees (Lao Fafa [1996] No. 355) stipulates: “When the employer and the employee who possesses the trade secret agree on matters related to the preservation of trade secrets in the labor contract, It is agreed that before the termination of the labor contract or within a certain period of time (not more than six months) after the employee proposes to terminate the labor contract, the work position shall be adjusted and the relevant contents of the labor contract shall be changed; the employer may also stipulate that the employee who possesses the trade secret is terminated. Or within a certain period of time after the termination of the labor contract (not more than three years), do not obtain other employers who produce similar products or operate similar businesses and have a competitive relationship, nor may they produce similar products or businesses that compete with the original units. Similar business, but the employer should give the employee a certain amount of economic compensation."
Article 16 of the "Regulations on Labor Contracts of Jiangsu Province" passed at the sixth meeting of the Standing Committee of the Tenth People's Congress of Jiangsu Province on October 25, 2003 stipulates that "employers and laborers who know the trade secrets may be in the labor contract. The confidentiality clause or the confidentiality agreement shall be signed separately. The confidentiality clause or the confidentiality agreement may make an agreement on the advance notice period for the laborer to terminate the labor contract and the corresponding economic compensation, but the advance notice period shall not exceed six months."
On January 15, 2013, the 32nd meeting of the Standing Committee of the 11th People's Congress of Jiangsu Province revised the Jiangsu Labor Contract Regulations. The revised regulations retained the provisions of the advance notice period and the order was adjusted. For the twenty-seventh article, the content is: “For laborers with confidentiality obligations, the employer may, in the labor contract or confidentiality agreement, the advance notice period for the laborer’s request to terminate the labor contract and the post for the advance notice period. Adjustments and labor remuneration shall be agreed. The advance notice period shall not exceed six months."
2. Is the denial period invalid because it violates the provisions of the Labor Law or the Labor Contract Law?
The "Labor Law" does not stipulate that the unit can agree to the densification period with the employee, but there is no prohibition between the unit and the employee.
Article 31 of the Labor Law stipulates that “when a laborer terminates a labor contract, he shall notify the employer in writing 30 days in advance.” Article 37 of the Labor Contract Law stipulates that “the laborer shall notify the written form 30 days in advance. The employer can terminate the labor contract."
There is no essential difference between the two, except that the terminology has changed.
If the provisions of Article 31 of the Labor Law are understood as mandatory provisions for giving workers the right to resign, the provisions of the Notice of the Ministry of Labor on the Issues Concerning the Movement of Enterprise Employees in the Period of Densification, Violation of Labor Law Invalid by regulations. However, the problem is that the original Ministry of Labor's regulations on the denial period were introduced. After the "Labor Law" came into effect, why did the former Ministry of Labor formulate violations of the Labor Law?
Similarly, after the Labor Contract Law came into effect on January 1, 2008, the Jiangsu Labor Contract Regulations, revised in 2013, continued to maintain the original de-binding period.
Under this circumstance, we believe that the stipulation rules for confidential employees are special provisions for resigning from ordinary employees in 30 days. According to the applicable rules of the “special terms superior to the general provisions”, the units may be legally involved. The secret employee agreed to the densification period.
Third, the connection and difference between the densification period and the competition restrictions
The denial period and the competition restrictions are all legal measures that the unit can take to protect trade secrets. What are the links and differences between the two?
The similarities between the two: (1) In terms of functions, the measures taken by the employer to protect the business secrets of the enterprise from being leaked and infringed; (2) The applicable personnel are the laborers who grasp the business secrets of the enterprise.
The main differences are as follows:
(1) The time and duration of application are different.
The “denomination period” or “early notice period” is applicable before the employee leaves the company, that is, the confidential employee must notify the employer according to the agreed time that he will leave the company, and the employer will transfer it to the non-confidential position for a period of time before leaving the company. After leaving the post, the "denomination period" can be up to 6 months.
The “competition restrictions” apply to the laborers who have the obligation to compete for competition after the termination or termination of the labor relationship between the two parties. They cannot work for a period of time after leaving the company or work in an enterprise that has a competitive relationship with the original employer. The term "competition limit" is no longer than 2 years.
(2) The economic costs paid are different.
For the laborer's employer in the “denomination period”, there is no need to pay extra compensation or compensation. Can it be reduced according to the different positions exchanged? If both parties expressly stipulate the wages and benefits standards for the "denomination period", they may be executed according to the agreement. If there is no agreement in advance and the wages adjusted afterwards are too large, disputes may arise, and the people's court may determine that the adjustment of wages is invalid. Because the “denomination period” is set because of the needs of the employer, therefore, the performance of the “denomination period” cannot damage or excessively damage the interests of employees.
During the period of non-competition, the employer needs to pay the laborer's certain economic compensation on a monthly basis. For the economic compensation standard, Article 28 of the Jiangsu Labor Contract Regulations stipulates: “The employer shall be responsible for the retired laborers within the time limit for non-competition. The economic compensation shall be given on a monthly basis, and the monthly economic compensation shall not be less than one-third of the average monthly salary of the employee in the first twelve months of leaving the employer." When an employer signs an "competition-limited" agreement with a laborer, the agreed economic compensation shall not be less than one-third of the monthly average wage for the twelve months prior to the separation.
4. Can the “denial period” and “competition restrictions” be agreed at the same time in the contract?
The second paragraph of the "Notice on Certain Issues Concerning the Movement of Enterprise Employees" of the Ministry of Labor is that the employer and the laborer who grasps the trade secrets may "may" agree on the advance notice period, and "may also" stipulate the competition limit, according to the article. Understanding righteousness should be a choice relationship, rather than agreeing to the densification period and the competition limit.
Article 16 (3) of the "Shanghai Labor Contract Regulations" clearly stipulates that "when the parties to a labor contract agree to a competition restriction, they may not agree to an advance notice period for the termination of the labor contract."
The second paragraph of Article 17 of the "Labor Contracts of Jiangsu Province" before the revision stipulates that "when the parties agree to the competition restrictions, the advance notice period for the termination of the labor contract as stipulated in Article 16 shall not be agreed." But in 2013 In the revised Jiangsu Labor Contract Regulations, the above contents were deleted. From the perspective of reverse interpretation, we seem to be able to interpret that the revised Jiangsu Labor Contract Regulations does not prohibit the unit from agreeing on the denial period while agreeing on the competition restrictions.
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