It has always been said that the training of workers has to be considered an investment for the company (not an expense) because a trained worker is much more profitable for it. The fear (and consequently mistrust) of some entrepreneurs is that the worker, once acquired the knowledge, leaves our company and what seemed like an investment for us, will be used by our competitors.
Notwithstanding the foregoing, this fear may lose its foundation if we know and apply the regulations in this regard. What does the labor law establish regarding concurrence agreements to avoid unfair competition?
Before analyzing what the regulations on concurrence agreements establish, we will briefly talk about what “does not establish”, that is, the definition of what is unfair competition.
Unfair competition is understood as that activity of the worker who uses the tools, contacts and knowledge acquired in a company to apply them in another activity (either for someone else or for his own account) without the consent of the employer, as long as it causes said employer actual or potential harm.
Therefore, and based on our definition, unfair competition occurs when the worker abuses contractual good faith and uses to his advantage (and without consent) training means that have been offered by a company.
With this in mind we must analyze two situations:
- When the worker is in our company: The worker cannot legally agree with the company unless he has express authorization from the employer to do so. Otherwise, the employer may fire you (provided certain circumstances exist) for disciplinary reasons. When the worker leaves the company: The employer may limit (through a non-concurrence agreement), that the worker provide services in a competing company so that the training you have received is not exploited by a company in the same sector for a certain period that we will see later.
And what does the non-concurrence agreement consist of?
The non-concurrence agreement can be made between the company and the worker at the beginning of the employment relationship, during its validity or when the employment contract is terminated. The duration in the case of technicians, the non-concurrence agreement can last two years, while in the rest of the categories, the time limit is six months. For the pact to be considered valid, it is necessary that two circumstances arise:
- That there is a true and real interest of the employer in which the worker does not provide services for the competition. This true and real interest must be technically or commercially motivated, so it is mandatory that the worker who signs this non-concurrence agreement have specific information on the way the company works, which, if applied in favor of competition, confers on them a differential and harmful value for the company. The Constitution establishes that the worker can freely choose his job. In the case of the non-concurrence pact, we are, in a certain way, delimiting this right that the Constitution grants to all people. Therefore, for the non-competition agreement to be considered valid, there must be adequate financial compensation on the part of the employer. If the employer breaches his obligation,the worker is released from the pact.
Finally, it is important to know what happens when the worker breaks the established pact:
- If the company proves that the worker has concurred with the company and has caused him real and certain damage, the worker will have to return to the company the compensation that he has received throughout the time. the company on its own and by chance, the Judge may order the closure of the corresponding establishment.
If you want to have the best workers, invest in them. Figures like the non-concurrence pact help make your investment safer.
