Non-disclosure agreements must not prevent problems from being raised at workplaces
What is the practice as regards non-disclosure or confidentiality agreements at the workplace? Can an employer ask employees to sign non-disclosure agreements containing threats of fines or legal proceedings? What rules apply to drawing up non-disclosure agreements?
Non-disclosure agreements are typically used in the IT and finance sector or in workplaces that handle large quantities of sensitive information. In the services sector various non-disclosure agreements are concluded relatively rarely.
According to PAM’s lawyer Julia Jeganova, for the period of their employment employees are legally obliged to have strong loyalty to their employer. This is specified for example in the Employment Contracts Act and the Criminal Code.
“The loyalty obligation means employees are required to keep information harmful to their employer confidential and to take their employer’s interests into account, also in their spare time. So employees must avoid doing anything that conflicts with the conduct reasonably required of employees in their position”, Jeganova says.
Non-disclosure agreements are sometimes drawn up when employees handle important and confidential information on their employer or employer’s business partners. Such business or professional secrets could include working procedures, computer programs, production volumes or customer registers. Business and professional secrets should also be objectively significant to the employer.
“There is nothing to prevent confidentiality obligations for the period of employment, but non-disclosure agreements are often also drawn up in situations where they aren’t even necessary”, Jeganova says.
Unreasonable agreement conditions can be reviewed in mediation or in court
A signed and binding non-disclosure agreement cannot prevent an employee from raising problems occurring at the workplace.
“In some circumstances it needs be assessed whether the agreement is contrary to good practice and how it relates to the freedom of speech guaranteed by the constitution. Any problems that emerge should primarily be discussed with the employer, however.”
According to the union’s lawyer, a contractual penalty of 10,000 euros in the restaurant sector, for example, sounds rather high.
“Even if an agreement is binding in principle, it may be possible to get the contractual penalty down through mediation based on the law on legal proceedings”, Jeganova points out.
The assessment could take into account for example the employee’s position and the financial significance to the company’s business of the information to be kept confidential.
“An agreement should also contain examples of what type of information the employer wants to protect”, Jeganova considers.
Once an employment relationship has ended, employees should however have the right to use the skills and experience they have gained during their employment to earn a living.
“You should always be careful if a non-disclosure agreement or other agreement is proposed to you as an annex to your employment contract. You can also enquire the reasons for it and have the agreement checked over by the trade union”, Jeganova advises.