Tencent sued job-hopping employees 51.com digging the wall, and the non-compete ban caused waves

　　On the afternoon of November 6, the post "Tencent brings employees to court: they are not allowed to set foot on the Internet for two years" appeared in well-known forums such as Tianya Community, Sohu Dahua IT, and Whip Niushi Community. The post said that some grass-roots technical personnel of Tencent company jumped to another Internet company, but were sued by Tencent. The post said that this behavior has brought great troubles to the work and life of these employees.

　　On the evening of the 7th, Tencent confirmed that it had formally prosecuted 15 employees suspected of collective job-hopping to the Shenzhen Futian Court because they violated the obligation of non-compete.

　　According to sources, since last year, unlisted 51.com have been poaching people from Tencent, and some core R & D departments, or even entire departments, have received similar calls, often promising salaries that are 2-3 times higher than the current and options that can be redeemed after listing in the future. "These job-hopping employees took away a lot of technical and trade secrets, and after arriving in the new company, they still engaged in completely similar work to Tencent without hesitation, which caused great trouble to Tencent’s normal business activities. Tencent had to take legal action to protect the legitimate rights and interests of the company and employees."

　　In fact, the employment contract signed by these accused employees and Tencent included a non-compete clause: "Party B (employee) shall not work in the research, production, sales or maintenance of congeneric products and services within Party A’s business scope (including instant messaging software products, communication chat and dating services, mobile communication value-added services, online video games, online entertainment, Internet information, other network products, other communication products, other software products, etc.) or in any way directly or indirectly for these enterprises and institutions."

　　However, it is this clause that has caused the most controversy. In a public statement released by Tencent, it insisted that "the employment contracts signed by Tencent and the 15 former employees stipulated non-competition clauses and confidentiality clauses according to law, issued corresponding allowances and compensation, spent a lot of manpower and material resources to train them, and kept relevant trade secrets and technical secrets transparent. If the employees fail to abide by the agreement according to law after leaving the company, they should bear corresponding legal responsibilities."

　　However, the accused employees believe that if Tencent requires employees not to work in competing Internet companies after leaving the company, they should be given non-compete compensation after leaving the company, but Tencent has not issued it. "Tencent has developed to this day, and its business basically includes all Internet fields. Does leaving Tencent mean leaving the Internet industry?" said a user who supported the accused employees.

　　In response to this incident, intellectual property lawyer You Yunting believes that the case brought by Tencent against employees this time reflects to some extent that the protection of trade secrets of domestic enterprises is indeed in an awkward situation: on the one hand, the infringement of trade secrets is serious, and domestic high-tech enterprises have urgent requirements for protecting their trade secrets; on the other hand, workers are also dissatisfied with the company’s rights protection actions. This problem cannot be solved overnight. In addition to the improvement of laws and regulations, it is also necessary to raise the awareness of the whole society to protect intellectual property rights.

　　The focus of controversy

　　Which employees does the non-compete prohibition apply to?

　　Zhang Ying, a lawyer at Chang’an Law Firm in Beijing, argued that the non-compete ban does not apply to all employees, but only to "employees who have an impact on the future development of the company". For ordinary employees, if the employer also requires them to sign such an agreement, it is suspected of abuse.

　　Han Zhizhi, deputy director of the Labor Law Institute of the Chinese Academy of Management Sciences, believes that in Internet companies, according to the needs of the project, employees at all levels will be involved in the core development process and directly contact the key code. Non-compete clauses should be applied according to the importance of the information they are exposed to to, rather than simply looking at the position.

　　At present, the relevant laws of China do not clearly limit the objects of non-competition prohibition. Therefore, the non-competition clause signed voluntarily by both employers has legal effect as part of the employment contract. However, since the non-competition agreement restricts the labor rights of employees, which are one of the basic rights of citizens guaranteed by the Constitution, the court can use the state’s judicial power to review the rationality and validity of the non-competition contract and whether it damages the basic living interests of employees.

　　Has compensation been paid?

　　Legal experts point out that as a basic condition for the non-compete agreement to take effect, enterprises must make financial compensation for employees’ non-compete behavior, and the non-compete agreement must also state the amount of compensation and the method of distribution, otherwise it is an invalid agreement. However, there is no clear and authoritative legal regulation on the amount of compensation for non-compete.

　　Tencent said it had paid allowances and compensation, and that "the clause in the employment contract: 200 yuan of the employee’s monthly salary during the employment period is regarded as the non-compete compensation fee given by the company to the employee." But the accused employees insisted that the compensation fee is included in the salary. "We can’t accept it!"

　　III. Is the scope of restrictions too large?

　　The accused employees believe that Tencent’s non-compete provisions are very unfair and cover almost all Internet businesses, which means they can hardly work in any Internet-related company within two years.

　　"This case cannot simply be looked at through the provisions. As for whether it constitutes a non-competition prohibition, the court will definitely determine whether there is a conflict of interest between the two based on the nature of the employee’s work during Tencent and the nature of his new job. If it does exist, the relevant non-competition regulations will be applied." You Yunting, an intellectual property lawyer at Shanghai Zhonghui Law Firm, said.

　　– Sign up exactly

　　Tencent:

　　The normal personal flow is a reasonable phenomenon, and Tencent is also actively attracting external talents to join. But Tencent hopes that every employee who joins can uphold the values of integrity and basic professional ethics, and do not bring trade secrets or technical secrets that should belong to their original company into Tencent. Similarly, we do not allow employees who leave Tencent to do such acts that harm the interests of the original company.

　　Employee "back is ya":

　　The position I am currently engaged in is a grass-roots job, and there is no so-called leakage of technical secrets and trade secrets. According to the indictment, I cannot work in the Internet industry for 2 years. What else can I do for a computer major?! Now there are layoffs everywhere. I finally found this job. How can I live?!!

　　– related links

　　Inventory of non-compete cases

　　In 2007, Baidu sued former employees for moving to Google

　　The employee, surnamed Geng, is a veteran Baidu employee who had been Baidu’s "website group manager and operation and maintenance group manager" before moving to Google China in mid-2006. Since Baidu and Google are direct competitors, Baidu later sued the employee for violating trade secrets.

　　In 2006, Foxconn sued former employees for moving to BYD

　　Two foxconn employees jumped to byd joint stock company, and foxconn sued the two employees and byd company for infringing on business technology secrets, claiming as much as 70 million yuan from the above-mentioned defendants. The two accused employees were sentenced to stealing trade secrets and sentenced to prison.

　　In 2005, Microsoft sued Lee for moving to Google

　　Lee joined Microsoft in 2000 and signed an agreement barring him from working in related industries for a year after leaving Microsoft. After Lee jumped to Google, Microsoft initiated legal proceedings against him. Later, the three parties secretly settled and Li smoothly joined Google.

　　In 2005, Kingdee sued former employees for moving to UF

　　Liao Jianhua, a former general manager of Kingdee’s Southwest Region and Chengdu Branch, left Kingdee on September 30, 2005 and joined Kingdee’s competitor UF Software two months later. Kingdee later argued that Liao violated the corresponding terms of the company’s Confidentiality and Non-compete Agreement, requiring Liao Jianhua to leave UF and compensate 100,000 yuan. Kingdee won the case. (Tao Guorui)

Editor in charge: Wang Jiaolong