In the modern business environment, protecting trade secrets is a crucial factor for the success and competitiveness of a business. Many companies and organizations require employees to sign confidentiality agreements to ensure that important information does not leak. However, the issue arises as to whether employees are obligated to agree to protect trade secrets. To answer this question, we need to consider the relevant legal frameworks, including the Labor Code 2019, the Intellectual Property Law (amended in 2022), and Circular No. 10/2020/TT-BLĐTBXH.

I. Legal Framework

1. Labor Code 2019

The Labor Code 2019 clearly outlines the rights and obligations of the parties in an employment contract. According to Article 10 of the Labor Code, an employment contract may include provisions related to confidentiality obligations. Although the Labor Code does not mandate a confidentiality agreement, provisions for the protection of trade secrets may be included in the employment contract if the parties agree.

2. Intellectual Property Law (Amended in 2022)

The Intellectual Property Law (amended in 2022) addresses trade secrets as a form of intellectual property. Trade secrets include information that is not publicly disclosed, has commercial value, and is kept confidential by its owner. According to Article 84 of this law, the owner of trade secrets has the right to seek protection for their trade secrets and may require related parties to sign confidentiality agreements.

3. Circular No. 10/2020/TT-BLĐTBXH

Circular No. 10/2020/TT-BLĐTBXH provides guidance on implementing certain provisions of the Labor Code regarding labor management and the protection of employee rights. This Circular does not specifically address the protection of trade secrets but provides guidance on the terms of employment contracts, which may include confidentiality agreements if necessary.

II. Analysis of the Requirement for Trade Secret Protection Agreements

According to the Labor Code 2019, signing a trade secret protection agreement between employees and employers is not mandatory. However, such an agreement provides several significant benefits to both parties.

1. Benefits of Signing a Trade Secret Protection Agreement:

Ensuring Clarity of Rights and Obligations: When employees sign a confidentiality agreement, the rights and obligations related to protecting trade secrets are clearly defined. This agreement helps both parties understand what constitutes a trade secret, how to handle and protect this information, and what actions are prohibited concerning the disclosure or misuse of trade secrets. Such clarity helps avoid misunderstandings and conflicts in the future.

Providing Legal Basis for Dispute Resolution: In the event that trade secrets are leaked or used unlawfully, the confidentiality agreement provides a solid legal foundation for the company to seek damages or take legal action against violations. This not only protects the company’s interests but also facilitates a more effective and fair resolution of disputes.

2. In Cases Where No Agreement Is Signed:

When employees do not sign a trade secret protection agreement, businesses still have certain legal obligations to protect trade secrets. According to the law, employees are still required to protect technological and trade secrets during their employment and after the termination of their employment contract. However, to ensure effective protection, businesses must implement other security measures.

3. Alternative Protection Measures:

Establishing Internal Security Procedures: Businesses should develop and maintain strict internal security procedures, such as access controls, encryption technologies, and security measures to protect trade secrets. This includes training employees on security policies and procedures to enhance their awareness and responsibility for protecting trade secrets.

Implementing Additional Security Measures: Businesses can use supplementary security tools and methods, such as non-disclosure agreements (NDAs) with partners and clients, to minimize risks and protect their trade secrets.

In conclusion, although signing a trade secret protection agreement is not a legal requirement, it is a crucial tool for effectively protecting trade secrets and providing a clear legal basis for addressing related issues. In the absence of such an agreement, businesses must implement other security measures to ensure the protection of their confidential information.

III. Recommendations

1. For Businesses

Sign Confidentiality Agreements: Businesses should require employees to sign trade secret protection agreements to ensure that all sensitive information is clearly protected. This also helps build a responsible and security-conscious work environment.

Develop Internal Security Procedures: Besides signing agreements, businesses need to establish and maintain strict internal security procedures. This includes access control, encryption, and training employees on security measures.

Regularly Review and Update Policies: Businesses should regularly review and update security policies and procedures to ensure they remain effective and compliant with current legal requirements.

2. For Employees

Understand Rights and Obligations: Employees should thoroughly understand their rights and obligations related to protecting trade secrets, especially when signing confidentiality agreements. This helps avoid misunderstandings and unnecessary conflicts.

Adhere to Security Policies: When working in an environment with confidential information, employees need to comply with the security policies and procedures set by the business and appreciate the importance of protecting sensitive information.

Fulfill Confidentiality Obligations: Even without an agreement, employees are legally obligated to protect trade secrets. They must keep company information confidential and not disclose or use it for personal gain or for third parties.

In summary, signing a trade secret protection agreement is a critical measure for safeguarding sensitive information and ensuring that both the business and employees’ rights are protected. Both parties should consider and implement necessary measures to maintain confidentiality and reduce risks related to trade secrets.

IV. Frequently Asked Questions

Question 1: Are employees required to agree to protect trade secrets?

When employees are involved directly with trade secrets as defined by law, employers have the right to agree in writing with employees regarding the content, duration, protection of trade secrets, and compensation in case of violations. Thus, employees must agree to protect trade secrets when directly involved with them. Note: If any terms in the trade secret protection agreement violate the law, employees have the right to refuse the agreement.

Question 2: How are employees penalized for violating trade secret protection agreements?

If an employee violates the trade secret protection agreement, the employer has the right to demand compensation according to the terms agreed upon. Additionally, the employer may impose disciplinary actions, including termination, for employees who breach the trade secret protection agreement. For trade secrets classified as state secrets, the regulations concerning state secret protection must be followed.

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