When signing your employment contract, it is essential to check that all the elements mentioned with your future employer, in particular during the job interview, are correctly transcribed: nature of the contract, remuneration, working time, trial period… But maybe there are some articles that you didn’t pay attention to that didn’t immediately appeal to you. However, you must be vigilant, as soon as you sign your employment contract, to identify the presence of certain specific clauses and to fully understand the obligations they imply for you.
Non-competition, confidentiality, exclusivity… it may be tempting for your employer to include such clauses in your employment contract. But it is still necessary that these clauses are necessary, with regard to your missions and responsibilities. They must also meet certain strict conditions in order to be applied. Is your clause correctly drafted? Non-competition, confidentiality, exclusivity: focus on three clauses that you regularly find in your contracts.
Exclusivity clause
You are in principle free to combine two professional activities, provided you do not exceed the maximum legal working time and do not miss your duty of loyalty towards your employer by carrying out a concurrent activity. But to go further and ensure your full availability, your employer can include an exclusivity clause in your employment contract.
This clause prohibits you from carrying out any other paid professional activity, concurrent or not, whether for another employer or for your own account. Failure to comply with it constitutes a fault which may be the subject of a disciplinary sanction up to and including dismissal for fault.
But be careful: to be valid, this clause must be drafted with precision and comply with strict conditions. First of all, it should in no way prevent you from working, because the freedom to work is an intangible fundamental principle. This is why the exclusivity clause is in principle prohibited in part-time employment contracts. Then, the clause must imperatively respect the following three cumulative conditions:
- be essential for the protection of the legitimate interests of the company;
- be justified by the nature of your duties, for example if you occupy a strategic position in the company;
- be proportionate to the desired goal. The clause may in particular be tempered by providing, rather than an absolute prohibition, for a list of activities which cannot be carried out by the employee, or by establishing an obligation to obtain the employer’s prior consent to exercise another activity. professional.
If the exclusivity clause inserted in your employment contract does not respect these conditions, then it does not apply to you.
Non-compete clause
Unlike the exclusivity clause, the non-competition clause only applies after the termination of your employment contract. This clause prevents you from carrying out an activity which directly competes with your former employer, whether with a competing company or on your own account.
To produce its effects, the non-competition clause must:
- be essential for the protection of the legitimate interests of the company. This clause can therefore be inserted in your contract if you occupy a position giving you access to technical or specific knowledge and know-how of the company;
- take into account the specifics of your job;
- be limited in time. The clause must specify a period of application, which must be reasonable (a period of two years is generally considered reasonable);
- be geographically limited. The zone d’application of the clause must be precisely defined (a department, a region, etc.);
- provide for a financial compensation, calculated according to the duration and the area concerned by the ban, as well as the damage that the clause represents for you.
These conditions are cumulative: failure to comply with one of them will invalidate the clause, which will therefore not apply to you.
To note : the clause must never have the effect of preventing you from carrying out an activity in accordance with your training, your knowledge and your professional experience. For example, a non-competition clause may prohibit a salesperson from working in a competing company in the same industry, but will not be valid if it targets a totally different industry. If your clause is too broad and seriously undermines the freedom to work, you can request its annulment from the industrial tribunal.
Attention : if you do not comply with your non-compete obligation when the clause is valid, the financial compensation will cease to be paid to you. You can be ordered to reimburse the sums collected, and to pay damages to your former employer to repair the damage suffered. The judges seized by your former employer can also order the cessation of the concurrent activity. Finally, your former employer can take action against your new employer, in particular for unfair competition.
Confidentiality clause
All employees are bound by an obligation of discretion and reservations: you cannot reveal confidential information to which you have access in the course of your work to third parties. To reinforce this obligation, your employer can insert a confidentiality clause in your employment contract.
By signing this clause, you agree not to disclose the information defined in the clause (for example, manufacturing processes, the economic results of the company, projects under development). This obligation must be respected both with regard to other employees and to persons outside the company. Failure to comply with your obligation of confidentiality constitutes misconduct, which justifies a disciplinary sanction which may go as far as dismissal depending on the seriousness of the breaches. You can also be ordered by the industrial tribunal to pay damages to repair the damage suffered by the company.
But to be valid, the confidentiality clause must meet certain conditions. First, it must be in writing. It must make it possible to identify precisely the nature of the confidential information that you agree not to disclose. The clause must also be justified by the nature of your activity, and proportionate to the goal sought: the more important your functions and responsibilities, the stronger your obligation of confidentiality.
To note : if it provides for the possibility, the confidentiality clause may continue to apply after the termination of your employment contract. But unlike the non-competition clause, it does not give rise to the right to financial compensation.
The distinction with the non-competition clause can also sometimes be blurred. Also, if the restrictions imposed by your confidentiality clause exceed the normal scope of this clause, and infringe your freedom to work for a competing company after the termination of your employment contract, the judges can reclassify it as a non- clause. competition, giving you the right to damages.
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