Workable NDA with company employees
In life, as a rule, the one who has more information succeeds more than others (c) Benjamin Disraeli
Greetings, dear readers!
Today I will tell you about the NDA with employees of IT companies, problems related to its performance, and their solutions.
This article is written mostly for managers and owners of IT companies, as well as for lawyers who work there.
')
I believe that it will not be harmful for employees of companies to familiarize themselves with the content of the article. Since they may in the future have to sign such a contract.
Let's start with the definition:
NDA ( Non-disclosure agreement ) - a non-disclosure agreement for confidential information.
Such a contract can be signed with any entity to whom you trust access to confidential information.
The main objectives of the NDA:
The first task is to prevent the fact of disclosure by the employee.
The agreement is of a preventive nature, and the better the agreement is worked through, the less likely it is that information will be disclosed.
The second task of the NDA is to apply sanctions to the employee - the violator in order to stop the further disclosure of confidential information.
The third task of the NDA is to recover material damage, which was caused by an employee of the company in connection with the disclosure of confidential information.
Summarizing, the main tasks are :
a) prevent disclosure,
b) stop disclosure if it started,
c) punish for disclosing and indemnifying.
Do NDA use our IT entrepreneurs?
Based on personal observation, there are four models:
Why “no NDA” is bad.
Your company’s confidential information is simply not protected, and any unscrupulous or offended employee can use and disclose it for personal gain, revenge, etc.
I have already met companies that suffered just from offended managers of employees who spread confidential information for the sake of revenge.
Why “some” NDA downloaded from the Internet is bad.
Employees of IT companies are usually not stupid people, and even more so know how to use Google.
Enough to spend about an hour, and to conclude that the NDA is a dummy and apply it in the realities of the laws of the CIS countries is almost impossible. (More on the inoperability of NDA I wrote below)
As soon as they understand this, we can assume that you don’t have NDA in the company, with all the ensuing consequences described a bit higher in the article.
Why NDA, developed by non-professional lawyers, is bad.
Non-core lawyers, or charlatans, can sell you an agreement, which in its essence is no different from “some kind” downloaded from the Internet. What will lead to the fact that employees will understand that the NDA is inoperable, with all the ensuing consequences described above.
Why the NDA, developed by professional lawyers, is good.
If the tool performs its functions, it is always good. It is this NDA that should be.
And now, let's go back to the realities, and try to understand what a good NDA should be.
Standard NDA design:
Why is it inoperable?
Fact number 1:
The judicial system of the CIS countries does not allow to protect the NDA in court.
Even if you somehow get a court decision in which sanctions are imposed on an employee in the form of a fine under a nondisclosure agreement, applying the decision and actually collecting the funds will be very difficult, because by that time, the individual is most likely to sell all your property.
Conclusion number 1:
There is no sense in relying on court defense. Financial sanctions do not work. The employee is not in danger. NDA is not working.
Fact number 2:
You can define in the agreement that it is treated according to the law, for example Belize and all disputes are resolved in the local courts of Belize.
But even if you win the court there (which is at least expensive), you need to apply his decision in the homeland of the employee. And by that time, he will have already sold all his property to his relatives.
Conclusion number 2:
There is no sense in relying on court defense. Financial sanctions are not a motivator. The employee is not in danger. NDA is not working.
Decision:
I propose to replace the “pressure lever” from financial sanctions to “discomfort” and introduce the following construction into the classic NDA:
If an employee violates the conditions of the NDA, you and companies affiliated with you go to diplomatic institutions of various (your choice) states in order to protect their rights and will apply to prohibit the issuance of a visa to a contract violator, or to refuse to receive a residence permit.
What will this design give?
It so happened that most of the employees of IT companies love to travel, some constantly attend various IT conferences around the world, someone plans to go abroad to work.
Therefore, fact number 3 - IT people like to travel and travel abroad.
In order to work or travel need a visa. And the presence of the visa itself does not guarantee that you will be allowed into the country.
If a person received complaints to the consulate or a diplomatic institution from an IT company that he is a “scoundrel” and divulges confidential information, they will think about whether a person should get a visa, residence permit, permanent residence or let him enter the country.
There is no 100% probability, but if in addition to a company that acts as a party to a non-disclosure agreement with an employee, a couple of companies affiliated with it will submit the same notice to the consulate or diplomatic institution along with your company - the efficiency will increase significantly.
Affiliated companies can be:
a) Your second, third ... tenth company
b) the company of your customer,
c) the company of your friends,
For example, we guarantee to the clients of my company that such notifications are sent on behalf of our group of law firms (and they are registered all over the world).
What are the advantages of this concept:
the head of the company gets a real lever of pressure on the employee.
What are the disadvantages of this concept:
The agreement will not affect in any way those employees who do not travel and do not plan to travel abroad. (but how many of these are in the IT field?)
Example of a case with disclosure of information:
Subjects:
Between “X” and Vasya was signed NDA in the form that I described above.
Vasya divulged confidential information in order to earn a considerable amount, and the director of X company found out about it.
Vasya was going for permanent residence in Poland, which was confirmed by the sysadmins, studying the contents of Vasya's e-mails.
X Company was registered in Cyprus, and had a local office and a second company in Kiev.
The lawyers of “X” had companies in Belize, Scotland, the USA, Ukraine and Lithuania, and all the companies had different names and directors.
As a result, 7 notifications were sent to the Polish consulate, that Vasya was a “villain”.
Vasya still walks through the streets of Kiev and did not go to Poland.
At the same time, he agreed to voluntarily pay damages in exchange for denying information about him in consular offices and terminating the NDA with him.
From practice, among 20+ clients who have implemented such an NDA in two years, only one employee decided to violate the NDA drawn up according to the concept of “prohibiting travel abroad”.
He did not believe in his working capacity, or he was attracted by “easy” money too much.
Summary of the article:
Classical NDAs do not work, because the “lever of pressure” in the form of financial responsibility of the signatory is not protected through court.
I propose to introduce mechanisms into your NDA, with the help of which it is possible to restrict the movement of an employee abroad - which will create discomfort for him and will be one of the levers of pressure and motivation not to disclose confidential information.
Conclusion:
NDA is a negative contract, and the introduction of a contract in the form in which I propose always causes discontent among the company's employees. But, on the other hand, in the realities of our legislation, this is a convenient and workable legal method for protecting information.
ps I personally came up with this concept of agreement, and when my clients asked me to sign my own NDA, I wondered ... and realized that it still works. =)
APDATE:
Analyzing the comments, I decided to describe in more detail the legal model of the contract.
1. The contract is not subject to the law of the Russian Federation, Ukraine or the Republic of Belarus. For example, in a case with Vasya, the contract was subject to the laws of Cyprus.
2. The company will not be condemned for false statements for several reasons:
a) The employee himself agreed that the Company, without a court decision, has the right to send such notifications.
b) The Employee will not have evidence that such letters have been sent.
c) The consulate or diplomatic institution is not obliged and will not disclose information about the sender of the letters. They do not exchange data with the state. authorities and courts without sufficient grounds. A good reason is at least a court decision. And how will the employee get it? No reason.
d) The company does not establish the employee’s guilt when submitting a complaint, legally it only notifies a third party of the employee’s behavior.
When classical jurisprudence does not work, one has to resort to strategic jurisprudence.
If there are more questions in the comments, I will try to answer them in the next update to the article.
I am very glad that the article aroused interest among readers, and I urge you to constructive communication.
PS For comments that insult me ​​and violate my rights, I will no longer respond.
Greetings, dear readers!
Today I will tell you about the NDA with employees of IT companies, problems related to its performance, and their solutions.
This article is written mostly for managers and owners of IT companies, as well as for lawyers who work there.
')
I believe that it will not be harmful for employees of companies to familiarize themselves with the content of the article. Since they may in the future have to sign such a contract.
Let's start with the definition:
NDA ( Non-disclosure agreement ) - a non-disclosure agreement for confidential information.
Such a contract can be signed with any entity to whom you trust access to confidential information.
The main objectives of the NDA:
The first task is to prevent the fact of disclosure by the employee.
The agreement is of a preventive nature, and the better the agreement is worked through, the less likely it is that information will be disclosed.
The second task of the NDA is to apply sanctions to the employee - the violator in order to stop the further disclosure of confidential information.
The third task of the NDA is to recover material damage, which was caused by an employee of the company in connection with the disclosure of confidential information.
Summarizing, the main tasks are :
a) prevent disclosure,
b) stop disclosure if it started,
c) punish for disclosing and indemnifying.
Do NDA use our IT entrepreneurs?
Based on personal observation, there are four models:
- No NDA,
- “Some” downloaded from the internet NDA,
- Designed by non-professional NDA lawyers,
- Designed by professional NDA lawyers.
Why “no NDA” is bad.
Your company’s confidential information is simply not protected, and any unscrupulous or offended employee can use and disclose it for personal gain, revenge, etc.
I have already met companies that suffered just from offended managers of employees who spread confidential information for the sake of revenge.
Why “some” NDA downloaded from the Internet is bad.
Employees of IT companies are usually not stupid people, and even more so know how to use Google.
Enough to spend about an hour, and to conclude that the NDA is a dummy and apply it in the realities of the laws of the CIS countries is almost impossible. (More on the inoperability of NDA I wrote below)
As soon as they understand this, we can assume that you don’t have NDA in the company, with all the ensuing consequences described a bit higher in the article.
Why NDA, developed by non-professional lawyers, is bad.
Non-core lawyers, or charlatans, can sell you an agreement, which in its essence is no different from “some kind” downloaded from the Internet. What will lead to the fact that employees will understand that the NDA is inoperable, with all the ensuing consequences described above.
Why the NDA, developed by professional lawyers, is good.
If the tool performs its functions, it is always good. It is this NDA that should be.
And now, let's go back to the realities, and try to understand what a good NDA should be.
Standard NDA design:
- Designated parties to an agreement
- Listed information that is confidential,
- It is prescribed that is the disclosure of information
- Responsibility for disclosure is prescribed, usually financial - in the form of a fine,
- The terms of the agreement are prescribed,
- Prescribed applicable law to the agreement.
Why is it inoperable?
Fact number 1:
The judicial system of the CIS countries does not allow to protect the NDA in court.
Even if you somehow get a court decision in which sanctions are imposed on an employee in the form of a fine under a nondisclosure agreement, applying the decision and actually collecting the funds will be very difficult, because by that time, the individual is most likely to sell all your property.
Conclusion number 1:
There is no sense in relying on court defense. Financial sanctions do not work. The employee is not in danger. NDA is not working.
Fact number 2:
You can define in the agreement that it is treated according to the law, for example Belize and all disputes are resolved in the local courts of Belize.
But even if you win the court there (which is at least expensive), you need to apply his decision in the homeland of the employee. And by that time, he will have already sold all his property to his relatives.
Conclusion number 2:
There is no sense in relying on court defense. Financial sanctions are not a motivator. The employee is not in danger. NDA is not working.
Decision:
I propose to replace the “pressure lever” from financial sanctions to “discomfort” and introduce the following construction into the classic NDA:
If an employee violates the conditions of the NDA, you and companies affiliated with you go to diplomatic institutions of various (your choice) states in order to protect their rights and will apply to prohibit the issuance of a visa to a contract violator, or to refuse to receive a residence permit.
What will this design give?
It so happened that most of the employees of IT companies love to travel, some constantly attend various IT conferences around the world, someone plans to go abroad to work.
Therefore, fact number 3 - IT people like to travel and travel abroad.
In order to work or travel need a visa. And the presence of the visa itself does not guarantee that you will be allowed into the country.
If a person received complaints to the consulate or a diplomatic institution from an IT company that he is a “scoundrel” and divulges confidential information, they will think about whether a person should get a visa, residence permit, permanent residence or let him enter the country.
There is no 100% probability, but if in addition to a company that acts as a party to a non-disclosure agreement with an employee, a couple of companies affiliated with it will submit the same notice to the consulate or diplomatic institution along with your company - the efficiency will increase significantly.
Affiliated companies can be:
a) Your second, third ... tenth company
b) the company of your customer,
c) the company of your friends,
For example, we guarantee to the clients of my company that such notifications are sent on behalf of our group of law firms (and they are registered all over the world).
What are the advantages of this concept:
the head of the company gets a real lever of pressure on the employee.
What are the disadvantages of this concept:
The agreement will not affect in any way those employees who do not travel and do not plan to travel abroad. (but how many of these are in the IT field?)
Example of a case with disclosure of information:
Subjects:
- X Company
- Employee of the company "X" - Vasya
Between “X” and Vasya was signed NDA in the form that I described above.
Vasya divulged confidential information in order to earn a considerable amount, and the director of X company found out about it.
Vasya was going for permanent residence in Poland, which was confirmed by the sysadmins, studying the contents of Vasya's e-mails.
X Company was registered in Cyprus, and had a local office and a second company in Kiev.
The lawyers of “X” had companies in Belize, Scotland, the USA, Ukraine and Lithuania, and all the companies had different names and directors.
As a result, 7 notifications were sent to the Polish consulate, that Vasya was a “villain”.
Vasya still walks through the streets of Kiev and did not go to Poland.
At the same time, he agreed to voluntarily pay damages in exchange for denying information about him in consular offices and terminating the NDA with him.
From practice, among 20+ clients who have implemented such an NDA in two years, only one employee decided to violate the NDA drawn up according to the concept of “prohibiting travel abroad”.
He did not believe in his working capacity, or he was attracted by “easy” money too much.
Summary of the article:
Classical NDAs do not work, because the “lever of pressure” in the form of financial responsibility of the signatory is not protected through court.
I propose to introduce mechanisms into your NDA, with the help of which it is possible to restrict the movement of an employee abroad - which will create discomfort for him and will be one of the levers of pressure and motivation not to disclose confidential information.
Conclusion:
NDA is a negative contract, and the introduction of a contract in the form in which I propose always causes discontent among the company's employees. But, on the other hand, in the realities of our legislation, this is a convenient and workable legal method for protecting information.
ps I personally came up with this concept of agreement, and when my clients asked me to sign my own NDA, I wondered ... and realized that it still works. =)
APDATE:
Analyzing the comments, I decided to describe in more detail the legal model of the contract.
1. The contract is not subject to the law of the Russian Federation, Ukraine or the Republic of Belarus. For example, in a case with Vasya, the contract was subject to the laws of Cyprus.
2. The company will not be condemned for false statements for several reasons:
a) The employee himself agreed that the Company, without a court decision, has the right to send such notifications.
b) The Employee will not have evidence that such letters have been sent.
c) The consulate or diplomatic institution is not obliged and will not disclose information about the sender of the letters. They do not exchange data with the state. authorities and courts without sufficient grounds. A good reason is at least a court decision. And how will the employee get it? No reason.
d) The company does not establish the employee’s guilt when submitting a complaint, legally it only notifies a third party of the employee’s behavior.
When classical jurisprudence does not work, one has to resort to strategic jurisprudence.
If there are more questions in the comments, I will try to answer them in the next update to the article.
I am very glad that the article aroused interest among readers, and I urge you to constructive communication.
PS For comments that insult me ​​and violate my rights, I will no longer respond.
defuz
The author, so that employees do not disclose confidential information, you need to build normal human relations with them, and not to invent leverage. God forbid to run into work with such gadgets as you .
Source: https://habr.com/ru/post/290424/
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