In addition to the essential clauses that must be included in the individual employment contract, the parties may also agree on other specific clauses, provided that these do not contravene the imperative norms of applicable laws, such as:

• the clause regarding professional training;
• non-compete clause;
• mobility clause;
• confidentiality clause.

Next, we will analyze one of the most important clauses in employment contracts – the confidentiality clause.

The confidentiality clause represents an essential element in the individual employment contract. This clause establishes the rules and obligations regarding sensitive and confidential information to which the employee will have access during and following the employment relationship with the employer.

Through the confidentiality clause, the parties agree that, throughout the duration of the individual employment contract and after its termination, they will not disclose data or information of which they became aware during the execution of the contract.

The individual employment contract or the internal regulations may enumerate the categories of data or information that are prohibited from being disclosed during the individual employment contract and after its termination.

The parties may consider data or information contained in the individual employment contract, concepts and proposals generated as a result of the activities carried out, as well as data or information related to the employer’s activities and of which the employee became aware during the course of the employment relationship.

The confidentiality clause is commonly included when, due to the nature of the employee’s position or specific duties, it is crucial to ensure the protection of confidential information to which they have access during the execution of the individual employment contract.

The confidentiality clause is optional and can be negotiated between the parties. If this clause was not included at the time of concluding the employment contract, it can be included later through an addendum signed by both parties.

The clause should provide a precise definition of the types of information that are considered confidential and prohibited from being disclosed, including personal data, financial information, business strategies, etc., and not just any information or data to which the parties had access during the execution of the contract.

Furthermore, the confidentiality clause does not apply to information related to the employer’s illegal activities or violations of employees’ rights. Simply put, if the employer is involved in illegal activities or violates employees’ rights, the confidentiality clause is not obligatory, and the employee has the right to disclose this information to authorities or the court.

Introducing this clause may impose an obligation of confidentiality on both contracting parties (employer and employee) or only one of them. This can be negotiated as either free of charge or against payment. If it is against payment, only the employer undertakes a consideration for maintaining the confidentiality of the information.

Regarding the duration of the effects of the confidentiality clause, the rule is the duration of the contract’s execution, but also after its termination, with or without specifying a termination period.

In the event of non-compliance with the confidentiality clause by either party, the culpable party may be held liable to pay damages. 

However, although the provisions of the Labor Code only refer to damages in the event of breach of the clause by the employee, such breach may also entail the employee’s disciplinary liability.

Author: Atty. Felicia Cioflan