During the entire term of the contract, the employee must not use any confidential information of the employer of which he has become aware of in the course of his work. This duty of confidentiality continues after the end of the employment relationship, insofar as the legitimate interests of the employer so require, irrespective of the conclusion of a non-competition clause. Trainees, although their employment contracts are often short, are subject to the same obligation.
This includes customer lists, manufacturing processes, business secrets and the company's financial situation. The employer must be particularly vigilant towards his/her executives because they have increased and privileged access to this confidential information.
Less stress, less commuting, flexibility in scheduling, telecommuting has everything to appeal to the employee. However, it is important to keep in mind that the employee will need to bring his or her work computer and certain files with them. They will be able to connect remotely to the company's server.
The risk of disclosure, loss or unauthorized access by third parties to confidential data is increased when the employee works from home. This is even more the case when the employee is working on a terrace during the summer months. The employer must ensure the security of the data he processes. Concrete solutions exist but must be planned in advance to minimize the risks to confidentiality and protect the company's data.
Employees have the right to freedom of expression guaranteed by the Federal Constitution. However, they are bound by a duty of loyalty and confidentiality towards their employer which may restrict their freedom of expression. An employee who publishes a picture of a prototype he or she is working on, an executive who discloses the company's financial situation on his or her LinkedIn profile, or an employee who criticizes his or her employer and reveals problems in the manufacture of the company's products: such situations constitute a breach of the duty of confidentiality. The employer must act.
Some of these behaviors on social networks may constitute an act of unfair competition. The employer has ways to punish the employee or to protect his/herself against such attacks. He/she must act quickly.
The temptation to record images or sounds in the workplace is great, whether to use trade secrets for one's own purposes or to gather evidence against one's employer for a possible lawsuit. An employee who engages in such behavior violates his duty of confidentiality. He is likely to be heavily sanctioned.
The employer may have an interest in not revealing his employee's salary to his colleagues. The introduction of a confidentiality clause on this subject is controversial. Indeed, while an executive has a greater duty of care and loyalty, this is not the case for ordinary employees. The legality of a confidentiality clause will depend on the employee's position.
The employer must also be vigilant about equal pay for male and female employees. A salary confidentiality clause is likely to be a problem.
Love at Work
An employee falls in love with a co-worker who eventually leaves his job and goes to work for a competing company. In such a situation, the employee is at increased risk of violating his or her duty of confidentiality, even unintentionally, with the risk of disastrous results for the company. The employer may, in certain circumstances and depending on the position held by the parties, preemptively terminate the employee.
Within the framework of the employment relationship, the employer has to process and store personal data of his employees. During the hiring process, the employer receives CVs which often contain the education, hobbies or even political mandates of the candidates. The employer manages and collects data on the employee's absences, particularly due to illness or maternity. Under certain conditions, he may also be required to install video surveillance cameras within the company.
This data is personal and sensitive. The employer is obliged to keep this information confidential. He may only pass on this information to third parties, especially if they are located abroad, under very strict conditions.
The employer is obliged to protect the personality of his/her employees. This duty implies that he must take the necessary measures to prevent and put an end to situations of sexual or psychological harassment (mobbing). In particular, the employer must put in place a person of trust, subject to a duty of confidentiality and trained to receive complaints from employees.