Employee mobility and trade secrets

Employee mobility is the primary source of infringements of trade secrets. An engineer, a sales executive or a manager who joins a competitor or sets up their own business takes knowledge with them, and sometimes documents. The law must reconcile the legitimate protection of the company with the freedom to work: the employee keeps the right to use the experience and skills honestly acquired. Employee mobility therefore calls for suitable contractual and organisational tools, put in place before departure.

Contractual tools

First, the confidentiality clause, which recalls and specifies the employee’s duty of discretion, identifies the categories of protected information and survives the termination of the contract. Next, the non-compete clause, which prohibits the employee from carrying on a competing activity for a limited period and territory, in return for financial consideration, on pain of nullity. Finally, the clauses on inventions and creations, which organise the ownership of results and the obligation to make an invention declaration. These clauses must be proportionate, failing which they are set aside.

Onboarding and offboarding procedures

On arrival, the company checks that the employee is not bringing in their former employer’s secrets, which would expose the company itself to an action, and formalises this requirement in writing. On departure, it organises an exit interview recalling the obligations, the return of equipment and documents, the revocation of access rights, the retention of connection logs and, in case of suspicion, a report on the last operations carried out on the systems. These procedures are part of the reasonable protective measures required by Article L. 151-1 of the Commercial Code, which can be consulted on Légifrance.

Key points

In practice, an action against a former employee and their new employer requires distinguishing experience, which may be freely used, from identified secret information, whoseunlawful use is sanctioned. Proof rests on the traceability put in place before departure and on swift investigative measures. The new employer can protect itself with a clean roomprotocol. The firm handles these issues for former and new employers, as presented on the page trade secrets lawyer.