A соmmercial secret. How can employer protect his secrets?

Abstract

The article is devoted to the study of measures taken by the employer to prevent the disclosure of commercial secrets by the employee. Such measures should be characterized by efficiency, simplicity, manageability and be comprehensive. In particular, the procedure for implementing local acts at the enterprise is characterized, which contain an exhaustive list of information that constitutes a commercial secret and which are designed to maximally protect the employer from the “leakage” of information that is commercially valuable. Such acts include: Provisions on commercial secrecy, List of information constituting commercial secrets of the enterprise, Provisions on the permission system for access of enterprise employees and representatives of third-party organizations to information constituting commercial secrets of the enterprise, Instructions for the organization and management of document management at the enterprise, containing commercial secret. Also, the employer can demand from the employee a personal commitment not to disclose commercial secrets. It is necessary to observe the procedure for familiarizing the employee with the commercial secret and with the responsibility in case of its disclosure or use.
 The article draws attention to the possibility of concluding non-disclosure agreements (NDA) with employees. The main conditions that can be included in such types of contracts are defined, as well as the responsibility for their violation.
 It has been investigated that the labor legislation does not provide for any special procedure for holding the employee accountable for disclosing a commercial secret. Therefore, it is proposed to provide in the Labor Code of Ukraine the ground for termination of the employment contract “disclosure of the employer’s commercial secret, which became known to the employee in connection with the performance of his labor duties.” The fact of disclosure of a commercial secret should be established by an official investigation.
 The article also analyzes the legal practice of holding employees accountable for the disclosure of trade secrets and notes the problem of proving a cause-and-effect relationship between the employee’s actions and the damage caused to the employer.