The application of confidentiality agreements in labor relations

05/04/2018
Fabiana Nitta, Camila Machado e Cintia Busse
fabiana.nitta@dobler.com.br; camila.machado@dobler.com.br; cintia.busse@dobler.com.br
Sonia Marques Döbler Advogados
Preface:

Some time ago, the companies' concern with confidentiality towards their employees was basically limited to management positions or the ones with technical nature.

Nowadays, however, with day-to-day technology improvements, which allow information to circulate fast within the enterprise environment and, also, with the new formats of service, such as home-office, this concern became broader.

As a result, when, before, the confidentiality contracts were executed with directors, managers and technicians, it is now necessary to have this type of agreement in place with all the employees of the company.

The disclosure of any piece of information to which the employee has access in connection with or as a result of the employment is potentially harmful to the employee, either the composition of costs of a certain product, for example, or the strategy to be adopted by the company in an ongoing negotiation. For this reason, all possible precaution measures are recommended.

The issue becomes even more sensitive as it is directly linked with the company's position in the market towards its competitors.

Confidentiality Agreement:

The so-called "business secrets" are considered as property of the company and include, among others, technical, industrial, commercial and administrative data, as well as the employee's material and intellectual activities to the employer and any improvements developed by him. Consequently, the confidentiality agreements should cover all the business secrets of the company.

There is debate, however, about the duration of the conditions established in the confidentiality agreements. Would they be limited to the period while the employment agreement is in force or might endure even after its termination?

In principle, although the confidentiality obligations are inherent to the labor relationship and, thus, might be understood as being limited to the same period of time of the employment agreement, the understanding that currently prevails in doctrine and court decisions is in the sense that it may last even after the termination thereof, as long as the parties - employer and employee - contractually set a reasonable period of time.

Nevertheless, in any case, when the employee is hired by a new employer, he must respect the secrecy obligations assumed with the previous employer, no matter the period of time agreed upon for the endurance of the confidentiality restriction, under penalty of violation of the former employer's rights.

What about the social networks?

The use of the social networks is an increasing reality in the present days. Its use in the labor environment must be careful, because the information posted in the social networks tend to mirror real life.

It is not uncommon to see posts made by employees in their private profiles with information about the companies where they work or about their employers, many times, unauthorized. Depending on the type of information, this should also be protected by a confidentiality agreement.

Besides, the Brazilian laws do not have specific rules about the use, for example, of cell phones by the employees in the place of work, about the capture of photos or, yet, their posting in the social networks, being silent about the issue. Despite it, the employer may limit their use, by creating internal policies with rules for the use of cell phones, social networks, etc., whenever it has any relation with the employment.

Consequences from the violation to the confidentiality obligation:

So great is the relevance of the non-disclosure obligation that its violation by the employee may bring consequences in three different grounds: labor, civil and criminal.

In the labor grounds, the employee that breaches the employer's business secret may be dismissed with cause, as authorized by article 482, letter "g", of the Brazilian Consolidation of Labor Laws ("Consolidação das Leis do Trabalho").

On its turn, in the civil grounds, the employer may seek compensation for damages, if it comes to support any losses as a result of the employee's default in complying with its non-disclosure obligation.

Finally, in the criminal grounds, pursuant to 195, item XI, of the Law No. 9,279/96, the one that "discloses, exploits or uses, without authorization, confidential knowledge, information or data, usable in the industry, commerce or services, excluded the ones already available to the public or that are evident to an expert in the matter, to which it had access by means of a contractual or employment relationship" commits unfair competition crime, being subject to conviction of three (3) months to one (1) year custody or the payment of fine.

Conclusion:

Therefore, even though the confidentiality obligation is inherent to the employment relationship, it is highly advisable to have the employee expressly engaged by the execution of a confidentiality agreement, whereby the employer will be able to outline, in detail, the aspects that it considers of more relevance and that shall be complied with by the employee, being the latter prevented from alleging unawareness in court, in the event of a judicial claim.

Besides, the companies may elaborate internal policies to embody the rules for the use of cell phones, social networks, serving not only as educative instruments to the employees, but also as additional means to prevent the unauthorized disclosure of the employer's confidential information.