The original article Are an employee’s rights and interests affected when participating in a confidentiality agreement in Viet Nam?
Issue: My company and I have signed a confidentiality agreement in a commitment, but this commitment is not attached to the labor contract. In which:
“Within a year from the date of resignation, the Employee is not allowed to do work that is competitive with the field of operation of the Company.
If the Employee violates the agreement, the Employee will be responsible to the Company, the laws and the Employee has to compensate for the damage and loss caused to the Company.”
So, will the above agreement affect my benefits? And what should I do if my benefits are adversely affected?
Thank you for your interest and question, we offer you an answer as follows:
What is a confidentiality agreement?
A confidentiality agreement is a form of agreement between an employer and an employee, in which the employee commits not to disclose business secrets and information to anyone without the consent of the employer. This agreement aims to protect business secrets, exclusive commercial advantages, etc., which the employer has contributed effort and expenses to build up the company[1].
Does the company have the right to negotiate confidentiality of information with the employee?
According to the provisions of the Labor Code 2019, the company has the right to agree in writing with its employee on terms of confidentiality related to business secrets and technology secrets of business[2]. Thus, the company’s agreement on confidentiality with the employee is in accordance with the law.
Are the employees’ rights and interests affected when entering into a confidentiality agreement?
When the employee signs a confidentiality agreement, an obligation to commit to information security for the company arises. Accordingly, when the employee resigns, he/she will be bound by obligations under the signed confidentiality agreement. As usual, the right to work will be restricted for a certain period and place under the agreement. And the employee will have to pay compensation if he/she violates the agreement.
Recently, regulations on confidentiality agreements between businesses and employees have not yet included instructions in detail. Therefore, in fact, it is easy to give rise to disputes between the business and its employee. To ensure their rights and interests, the employee need to be careful when signing confidentiality agreements with his/her company. It is necessary to clearly negotiate the content, time and scope of confidentiality and should be ready to refuse to sign a confidentiality agreement if you feel that your rights and interests are not guaranteed.
In the above situation, the employee should clearly agree on what jobs are competitive with their field of operation as well as which companies are competitors of the company so that he/she can easily perform their duties and protect their rights and interests when disputes arise. In addition, the employee should agree on additional benefits when performing obligations committed in the confidentiality agreement and require this commitment to be attached to the labor contract.
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Translator: Le Khanh Linh
Content writer: Le Tien Thanh
Instructor: Nguyen Linh Chi
Admin: Lawyer Thuan
[1] Mai Chi (2018), “Be alert to confidentiality agreements”, Nguoi lao dong News, [https://nld.com.vn /cong-doan/can-trong-voi-thoa-thuan-bao-mat-20180618192839114.htm].
[2] Article 21.2 Labor Code 2019.
