How will disclosure of business secrets be handled?

Based on the following laws: Labor Code 2019; Competition Law 2018; Decree 75/2019/ND-CP on administrative sanctions in the field of competition; Decree 145/2020/ND-CP details and guides the implementation of a number of articles of the Labor Code on working conditions and labor relations; Circular No. 10/2020/TT-BLDTBXH details and guides the implementation of a number of articles of the Labor Code on the content of labor contracts.

1. Disclosing an enterprise's business secrets is a prohibited act

Pursuant to the provisions of Point b, Clause 1, Article 45, Competition Law 2018, violations of confidential business information are prohibited in the following forms:

- Accessing and collecting confidential business information by opposing the security measures of the owner of that information;

- Disclosing or using confidential business information without the permission of the owner of that information.

In addition, in Clause 2, Article 21, Labor Code 2019, it is stipulated that when an employee works directly related to business secrets or technological secrets according to the provisions of law, the employer shall The employee has the right to agree in writing with the employee on the content and duration of protection of business secrets, technology secrets, rights and compensation in case of violation by the employee.

Thus, according to the above regulations, the act of disclosing an enterprise's business secrets is a prohibited act. Therefore, in case an enterprise has an agreement with an employee not to disclose business secrets and the employee violates, the enterprise will be disciplined and at the same time fined according to the provisions of law. law.

In addition, individuals and organizations that have acts of accessing and collecting confidential business information by opposing the security measures of the owner of that information will be punished according to the regulations on sanctions. Penalties for administrative violations in the field of competition.

2. Penalties for disclosing business secrets of employees

2.1. Firstly, Article 125, Labor Code 2019 applies the disciplinary form of dismissal:

The disciplinary form of dismissal is applied by the employer in the following cases:

1. Employees commit acts of theft, embezzlement, gambling, intentionally causing injury, or using drugs at work;

2. The employee commits acts of disclosing business secrets, technological secrets, infringing on the intellectual property rights of the employer, or acts of causing serious damage or threatening to cause special damage. serious damage to the employer's property or interests or sexual harassment in the workplace as stipulated in the labor regulations;

3. The employee is disciplined to extend the salary increase or demotion but repeats the offense while the disciplinary action has not been removed. Recidivism is the case in which an employee repeats a violation that has been disciplined but has not yet had the disciplinary action removed as prescribed in Article 126 of this Code;

4. The employee voluntarily quits his job for 05 cumulative days within a period of 30 days or 20 cumulative days within a period of 365 days from the first day of voluntarily quitting his job without a legitimate reason.

Cases considered to have legitimate reasons include natural disasters, fires, illness of oneself or a relative with confirmation from a competent medical examination and treatment facility and other cases specified in labor regulations. dynamic.

Thus, according to the above regulations, businesses can discipline employees to the highest level of dismissal if the employee has the behavior of disclosing business secrets.

2.2. Second, administrative sanctions for disclosing business secrets:

Pursuant to the provisions of Article 16, Decree 75/2019/ND-CP on administrative sanctions in the field of competition, fines from 200 million VND to 300 million VND for one of the following acts:

- Accessing and collecting confidential business information by opposing the security measures of the owner of that information;

- Disclosing or using confidential business information without the permission of the owner of that information.

At the same time, Clause 7, Article 4, Decree 75/2019/ND-CP stipulates the maximum fine level specified in Article 16, this Decree applies to violations by organizations and individuals. For individuals who commit the same administrative violation of competition, the maximum fine is equal to half of the maximum fine for an organization.

Thus, based on the above regulations, employees who disclose business secrets without permission will be fined from 100 to 150 million VND.

2.3. Third, compensation for damages:

In Clause 3, Article 4, Circular 10/2020/TT-BLDTBXH regulates compensation for damages when violating agreements to protect business secrets and technology secrets as follows:

“When an employee is discovered to have violated the agreement to protect business secrets or technological secrets, the employer has the right to request compensation from the employee according to the agreement of both parties. The order and procedures for handling compensation are carried out as follows:

a) In case the employee is discovered to have committed a violation during the term of the labor contract, it will be handled according to the order and procedures for handling compensation for damages specified in Clause 2, Article 130, of the Ministry Labor law;

b) In case the employee is discovered to have committed a violation after terminating the labor contract, it will be handled according to the provisions of civil law and other relevant laws."

Accordingly, employees have the obligation to protect business secrets and technological secrets throughout the duration of the labor contract and also after the termination of the labor contract within the period agreed upon by both parties. If there is a violation, there will be corresponding handling methods depending on each case.

The condition to be held responsible for compensating the employee for damages is only when the employer discovers a violation of the agreement to protect the employee's business secrets and technological secrets. Therefore, if the employee's violation is not detected, liability for compensation for damages is not imposed.

In cases where an employee is discovered to have committed a violation during the term of the labor contract

According to the provisions of Point a, Clause 3, Article 4, Circular 10/2020/TT-BLDTBXH, in this case, compensation will be handled according to the provisions of Clause 2, Article 130, Labor Code 2019. Clause 2 , Article 130, Labor Code 2019 is guided in Article 71 of Decree 145/2020/ND-CP.

Accordingly, Clause 2, Article 71, Decree 145/2020/ND-CP guides regulations on handling compensation for damages in Article 130, Labor Code 2019 as follows:

During the statute of limitations for handling compensation for damages specified in Article 72 of this Decree, the employer shall conduct a meeting to handle compensation for damages as follows:

- At least 05 working days before holding a meeting to handle compensation for damages, the employer shall notify the parties who must attend the meeting, including: the parties specified in point b, point c, clause 1, Article 122 of the Labor Code (representative organization of employees at the establishment of which the employee being disciplined is a member; Employees must be present and have the right to defend themselves and ask a lawyer or a representative organization of workers In case the person is under 15 years old, there must be the participation of a legal representative), a price appraiser (if any); Make sure these constituents receive notice before the meeting takes place. The content of the notice must clearly state the time and location of the meeting to handle damage compensation; Full name of person subject to compensation for damage and violation;

- Upon receiving notice from the employer, the parties required to attend the meeting specified in Point a of this Clause must confirm their attendance at the meeting with the employer. In case one of the participants cannot attend the meeting at the announced time and location, the employee and the employer shall agree to change the meeting time and location; In case the two parties cannot agree, the employer decides the time and location of the meeting;

- The employer conducts a meeting to handle compensation for damages according to the time and location announced as prescribed in Points a and b of this Clause. In case one of the participants required to attend the meeting specified in Point a of this Clause does not confirm attendance or is absent, the employer will still conduct the meeting to handle compensation for damages according to the provisions of law.

The content of the meeting to handle damage compensation must be recorded in minutes, approved before the end of the meeting and signed by the meeting attendees as prescribed in Point a, Clause 2, this Article, in case If someone does not sign the record, the person recording the record must clearly state their full name and reason for not signing (if any) in the content of the record.

The decision to handle compensation for damages must be issued within the statute of limitations for handling compensation for damages. The decision to handle compensation for damage must clearly state the level of damage; Cause of damage; Level of compensation for damages; The time limit and form of compensation will be sent to the parties that must attend the meeting.

It can be seen that the legal regulations on decisions on handling compensation for damages have many similarities with decisions on handling labor discipline.

For cases where an employee is discovered to have committed a violation after terminating the labor contract

Labor law stipulates compensation for damages in cases where employees are found to have committed violations after terminating the labor contract according to the provisions of civil law and other relevant laws.

Pursuant to the provisions of Article 360, Civil Code 2015 on liability to compensate for damages due to breach of obligations:

In case there is damage caused by a breach of obligation, the obligated party must compensate for all damage, unless otherwise agreed or otherwise provided by law.

Damages due to breach of obligations specified in Article 361, Civil Code 2015 include:

- Damages due to breach of obligation include material damage and mental damage.

- Material damage is actual physical loss that can be determined, including loss of property, reasonable costs to prevent, limit, and remedy damage, and actual lost or reduced income. shoot.

- Mental damage is mental loss due to violation of the life, health, honor, dignity, reputation and other personal interests of a subject.

Current labor law does not stipulate the burden of proving damages due to breach of obligations on the employer. Therefore, determining the appropriate amount of compensation is agreed upon by the parties.