Is the frequent occurrence of competition disputes in the Internet industry the protection of enterprises and the drag on the workplace?
Abstract: Is it really reasonable to refer to the “competition agreement” of Internet giants repeatedly in recent years?Recently, the former WIND data analyst Wang mou job-hopping B station was determined by WIND to violate the non-competition agreement to claim 2 million yuan, causing industry concern.The case of the second trial judgment announced: only on the basis of business scope overlap can not determine million and B station constitute a competitive relationship, Wang need not pay liquidated damages.Behind this news, triggered such a topic: in recent years, the Internet giants have been repeatedly mentioned “competition agreement”, really reasonable?View a full non-compete is illegal In bytes to beat, a lot of spelling and other Internet companies have had work experience, miss zhou said almost all Internet companies require their employees to sign a series of non-compete agreement, which set up by the terms and conditions for job seekers is not friendly, but in order to get a good job, job seekers must sign the agreement.What is a Non-compete agreement?A word popular science: when the employee departs, he or she signs an agreement with the original unit. During the period of the agreement, he or she will not work in some specific organizations or organizations, and the original unit will issue a certain amount of compensation on a monthly basis.However, in case of breach of contract, the compensation shall be returned and the compensation for breach of contract shall be assumed.Generally speaking, the competition agreement in the past is mostly signed between the enterprise and the core of the middle and high level.However, with the rapid development of high-tech fields and business forms, the coverage of non-compete agreements has also begun to expand in recent years.So, for the competition agreement, how does the law provide?The first thing to be sure is that it is clearly illegal for all employees to sign up because non-compete does not apply to rank-and-file employees.According to the Provisions of the Labor Contract Law, the subject of the obligation of competition restriction can only be the employer’s senior management personnel, senior technical personnel and other personnel with confidentiality obligation. The employer shall not agree on competition restriction with other workers other than the above-mentioned personnel, otherwise the agreement will be invalid.The purpose of this system is to prevent and solve the disputes caused by poaching between the same industry and high-end talents taking away trade secrets.In addition, some lawyers pointed out that workers enjoy equal employment opportunities and the right to choose jobs freely, so employers have to pay a high cost to sign a non-compete restriction with workers.Therefore, the enterprise’s competition restriction is generally not signed with ordinary employees.In reality, in order to prevent employees from resigning, some enterprises regard non-competition as a more inappropriate means to prevent employees from job-hopping.Non-competition agreements have been searched many times for various reasons.Remember, the non-competition agreement came into the spotlight when Tencent demanded huge fines for two employees who left bytecode.Some netizens said bluntly that the agreement, which was originally thought to be used to restrain senior executives, has now spread to the point that even ordinary employees have to sign it, and has become an unnecessary bondage for employees.Some netizens sum up, the current Internet competition agreement in the general sense of the agreement has the following points: one is the regulation can not be engaged in the industry, the other is the competition agreement does not start depends on the company, only naked resignation three months after the blank period of the company does not pay compensation will become invalid, the third is low compensation amount, only 20%-30% of the daily salary.”Why does this kind of agreement, which is completely in favor of the company, not attract the attention of relevant departments, and become increasingly fierce in daily life, in many industries fresh graduates need to sign as soon as they enter the job.Such non-compete agreements, which have to some extent become ‘contracts for sale’, should be curtailed.”On social media platforms such as Zhihu and Maimai, many professionals share their experiences of being bound by non-compete agreements.In the beginning, many candidates were forced to sign non-compete agreements, compromise on the basis of good work and get hired.But leaving for a better platform, or just for family matters, can lead to disputes over non-compete agreements.Mr. Zhang, who was sued during his job-hopping, said he had worked for two competing companies before being sued by his former employer.Mr. Zhang is always reluctant to accept this conclusion. He thinks that the markets of the two companies do not coincide, and the circle of the live broadcast industry is not large, and almost all companies are in competition. Does this mean that if I leave, I have to change jobs?”Competition restrictions may seem reasonable and legal, but a careful analysis shows that they are full of unequal and even overbearing provisions, which result in different understandings of the provisions in practice,” he said.”I think the current non-compete agreement is completely contrary to the original purpose, which was originally set up to protect the interests of companies, but now it has become a way for companies to get high compensation.For the average employee, it’s more like ‘selling out.'”It is argued that non-competition agreements are not problematic in themselves, but if abused, they can seriously impede the normal flow of labor and seriously infringe on citizens’ labor rights, which are guaranteed by the Constitution.Some HR pointed out in the comments section of Zhihu that nowadays, the scope of competition restrictions of many Internet companies is too broad and vague, and some companies even directly cover the whole Internet field.This means that the original equal and reciprocal restrictions on competition tend to be abused, and some “migrant workers” are forced to abandon industry accumulation and choose another industry., have point out that if the non-compete agreement into a bully, workers don’t sign the contract to sign, also limits the infinite expansion, on the surface, the injured is the hope that through job-hopping, raise salary, get more opportunities to study “working people”, but in the long run, an industry once lost mobility, industry development will also lose energy.Due to the restriction of the competition agreement, employees may face the situation of not being able to find employment quickly or being forced to transfer to other industries. In the long run, it will also lead to the shortage and waste of talents in the industry.This is a vicious circle that hinders the healthy and rapid development of the industry.In this view, non-core positions of ordinary employees of the non-competition agreement, can be replaced by confidentiality agreement + intellectual property rights and other relevant provisions.From the current level of discussion on this topic among professionals, there are still a majority of people who reject the non-competition agreement.However, there are dissenting voices.As an internationally accepted competition protection strategy, non-compete agreements are widely used in various fields. Why do they leave the public with the impression of frequent competition disputes in the Internet industry in recent years?In fact, it is just because the litigation target of the Internet industry is relatively larger, and the Internet field is relatively more controversial, so it gives the public an illusion that only the Internet can compete for business.But there is no problem with the non-compete limit itself.One possible misconception is that non-compete agreements help employers suppress employees, but not necessarily.In fact, a reasonable non-compete agreement should be “double protection” for the enterprise and the employee.For example, in July 2018, Shanghai No. 1 Intermediate People’s Court issued the First White Paper on the Trial of Non-competition Dispute cases by Shanghai Courts, which stated that non-competition agreements regulate the behaviors of both parties, which should not only protect the legitimate interests of employers, but also safeguard the right of laborers to choose jobs freely.It is necessary not only to avoid excessive scope of competition of employers, but also to avoid arbitrary breach of contract by workers. In particular, the senior management of enterprises must pay attention to keep the contract when leaving, otherwise it will escape from huge claims.At the end of the day, a non-compete agreement is binding on both the employee and the company.Therefore, there is a view that in the increasingly fierce competition at present, enterprises and employees to sign a competition agreement or will become a normal practice.