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This article is from WeChat public account: Kindu Institute (ID: KWM_China) , author: Luhui Wen Li Xin Yang Yang, the original title: “I love a person is difficult” – the love and hate of the science and technology enterprises and core technical personnel, the title map from: Visual China

It’s really hard to forget you.

The pain of missing is entangled in my heart

The hope of the dynasty, there will never be an answer

Why did you choose a break?

……

For any technology-based company, having core technical achievements and supporting professional teams is undoubtedly the foundation for the survival, development and future listing of the company. However, in practice, there is no shortage of litigation disputes in which companies have lost market competitiveness due to the loss of trade secrets, the core patents have been declared invalid, and they have been involved in high-value litigation disputes. There are these phenomena. In the final analysis, there is a problem with “people”. As a science and technology enterprise that is highly dependent on core technicians, it is especially important to pay attention to the management of “people” and the risks that “people” may bring. Hidden dangers.

This article will introduce the risks that may arise from the cooperation between enterprises and core technical personnel and the prevention and control measures that can be taken in management from the perspective of labor employment and management.

What a painful comprehension – potential risks when recruiting core technicians

Our love is wrong

I hope you and I have not suffered in vain

If you have really paid for it

It should be satisfied

The performance of core technicians in the company may trigger intellectual property rights to former employers Infringement

It is well known that according to the provisions of the Patent Law of our country, the inventions and creations performed by the work of the unit or the material and technical conditions of the unit are mainly used for service invention creation, including the one made within one year after the termination or termination of the labor relationship. Inventions related to the tasks assigned by the original unit or the assignment of the original unit.

After leaving the original unit to join a new employer, is the effective creation of the invention created at the new employer or the existing research and development products of the new employer related to the service invention of the original unit? Does the technical assistance it provides to new employers infringe on the intellectual property rights of the original unit? If the core technicians not only work in the company, but also retain cooperation with other research institutions and colleges and universities and participate in research projects, how to clarify the boundaries between their technical assistance for different institutional entities? If the former employer of the core technical staff or other institutional entities still in cooperation with the company advocates intellectual property infringement, how can the company self-certify innocence?

Core technicians disclose to the new company and use the trade secrets of former employers

Core technicians inevitably hold the trade secrets of former employers. If such trade secrets have obvious implications for the new companies they join to enhance their competitiveness or for the core technicians to quickly establish themselves in the new company, in practice New companies, or core technicians, are hard to resist the strong temptation of the forbidden fruit.

In addition to the current domestic judicial practice, the plaintiffs of trade secret infringement cases have a very difficult testimony, which has contributed to the market sentiment of competitors’ trade secrets through the flow of talents.The situation is frequent and the infringement is getting bigger and bigger, and often even on the edge of potential criminal responsibility.

Violating the competition agreement with the former employer, implicating the new company

The signing of a non-competition agreement between senior management and technical personnel has become a standard for entry in recent years. Especially for core technical personnel, the former employer will not exempt his non-competition restrictions from his or her departure. The form of notification by the letter repeatedly reminds the departing staff to strictly abide by the non-competition obligations.

In practice, the departure of core technicians who have been listed as the focus of attention by former employers has often become a concern for former employers. If the core technicians join the competition in the non-competition period, the former employer will not only consider the arbitration and litigation of the non-competition limitation of the departing technical personnel, but also often try to get the core technicians into the job through various means. The new company is involved. For example, Leveraging Media reports that competitors are maliciously digging, accusing the new company of unfair competition, paying close attention to the research and development results of core technicians joining the new company, considering litigation cases in which intellectual property or trade secret infringement is initiated, or directly listing new companies. The third person who violated the contract for the resignation of the employee’s non-competition case, not only needs to bear the burden of the lawsuit, but also faces the embarrassing situation of being investigated and inquired by the court.

In addition, the most helpless for the new company is that if the newly recruited core technical personnel are judged by the court to continue to fulfill their non-competition obligations, the employee must immediately leave the company in the new company, such as the employee refuses to get from the science and technology. If the enterprise leaves the company, the former employer may apply to the court for enforcement. For the case of bad circumstances, the court does not rule out that the court requires the new company to cooperate with the execution during the enforcement phase and lift the labor relationship with the employee. For the new company, although the core technical staff has been employed, it has been unsettled, and may have been forced to experience a lawsuit that affects the reputation of society and is accused of malicious competition. It must be said that it is a chicken.

Happiness Agreement – Scientific Management of Core Technicians and Core Technology Content

Be brave and afraid

No matter how many roads ahead there will be struggling

Still for him

The establishment of cooperation between science and technology enterprises and core technical personnel requires prevention on the one hand.The potential risks mentioned in the first part are on the other hand. On the other hand, it is necessary to establish a long-term cooperative relationship with the core scientific and technological personnel, and closely combine the scientific research and development capabilities and research and development achievements of the personnel with the scientific research needs of the company to grow together. Therefore, it is necessary to prevent the risks that they may join, to motivate and stabilize the core technical personnel recruited, and to avoid the risk of infringement that may occur after they leave. It must be said that the cooperation between the science and technology enterprises and the core technical personnel is a Tangled love process. In general, we recommend that companies focus on the following aspects:

Background survey before recruitment

Core technicians are non-ordinary employees, and conducting a background check is an effective means of understanding whether they have their own risk sources. In these background investigations, in addition to verifying the candidate’s educational background, job performance and job performance and other basic information, more attention should be paid to the results of job inventions in the history of candidates, part-time work or personal investment, and historical complaints.

Disclosure, Commitment and Evaluation at the Time of Admission

From the perspective of preventing intellectual property rights and trade secret infringement, whether the core technicians newly joined in practice have used the intellectual property rights and trade secrets of former employers, it is difficult to have standard answers, and the details of the facts are often difficult to open the fog. . From the perspective of new employers, it is nothing more than to measure the degree of risk exposure, prove their compliance management and non-maliciousness, and the independence of their own technology through some specific measures.

For example, the core technical personnel who are required to be recruited shall truthfully disclose the historical research results, perform due diligence and infringement analysis on the technical contents of the historical inventions and the technical contents that the company intends to allocate, and request core technicians. Make a commitment to the use of other people’s job inventions, ask them to participate in the company’s technology research and development work, and make a clear disclosure of the existing service interface in the unit.

Attract and stabilize core technicians with the help of national and regional government policies and resources

In recent years, national and local government agencies have (including human and social bureaus, science and technology bureaus, etc.) constantly changing and optimizing talent policies, such as Since 2015, Shanghai has successively issued “20 Talents New Deal” and “Talent New Deal 30”, SuzhouSince 2010, the city has introduced the “Gusu Talent Plan” and “40 Talents New Deal”. These talents, through the provision of hukou, projects, and financial support, focus on the introduction and incubation of technical talents, and promote the transformation of technology into scientific research results to stimulate local economic development.

For science and technology enterprises, through the use of local talent policies, it is possible to introduce high-quality core technicians, stimulate scientific research and innovation, and also regulate the scientific research behavior of core technicians through local policies.

General constraints on core technicians

When the core technical personnel join the company, in addition to signing the most basic labor contract and confidentiality agreement, they should also consider the competition restriction agreement, the staged R&D goal setting, the stage R&D team construction setting, and the potential on-the-job invention. Intellectual property protection agreements, conflicts of interest during employment, prohibitions, etc.

Develop appropriate R&D incentives

Providing appropriate R&D incentives to core scientific and technical personnel can effectively encourage core technicians to develop and innovate, and also help to more closely integrate the personal interests of core scientific and technical personnel with the company’s interests. At the same time, it can be considered to cooperate with R&D incentive deferred payment. Or the locked system design can also achieve the role of retaining talents, preventing and controlling technology infringement during the research and development process. Incentives in practice are diverse and flexible, including but not limited to R&D bonuses, job invention rewards, equity incentives, performance bonuses, and more.

Create and implement a trade secret protection system

For science and technology enterprises, a perfect trade secret protection system is one of the core measures to protect trade secrets, and is also a favorable evidence to prove that the company has taken protective measures against trade secrets. A comprehensive trade secret protection system usually needs to consider the following aspects:

• Scope of trade secrets

• The secret management of trade secrets and the traceability of secret nodes;

• Security settings for corporate IT and network systems;

• Security measures for the storage, use and destruction of paper confidential materials;

• Disintegration measures when employees in secret positions leave the post;

• A daily training system for trade secret protection.

focus on the timely development of the progress or results of the core scientific and technical personnel

In practice, the core technicians are responsible for all or part of the R&D team. All important R&D materials, R&D processes and R&D results are in the hands of a small number of people. If there is a cooperation gap with the core technicians, it is likely that the management of the company will not be able to successfully obtain the handover of key technologies, affecting the product development process or the frequency of technical updates.

Therefore, in practice, it is recommended that the company establish a phased delivery management system for the technology according to the specific situation, and try to ensure that the core technical personnel can archive the technical content at the key content of the technology or at a specific point in time to reduce the technical personnel of one or part of the technicians. Dependence.

Good Breakup – Core Technician’s Separation Risk Prevention

It’s hard to drag again

Good to let me go early

Everything is hard to work

Don’t be better

“There is no such thing as a banquet in the world, and it will last for a thousand years. There must be no separate days.” For the departure of core technical personnel, science and technology enterprises should maintain a high degree of vigilance and take precautions against the risk of separation. The following aspects:

agree and start the densification period

Under confidentiality period means that the employer can stipulate that the employee must notify the employer in advance within a period of time before leaving the company, and can quit after the expiration of the notice period, and the employer has the right to adjust the work of the employee during the notice period. Post and content.

We generally recommend setting such de-binding periods in the labor contract of the core technician and, as far as possible, fully demonstrating the need to apply the densification period in their position, and in advanceSet the execution of the de-confidence means, such as when the employee should be transferred to what position, when should start to hand over the work content related to trade secrets, and so on.

In addition, regarding the effectiveness of the densification period system, there is a slight controversy in practice. The author will discuss it briefly here. As early as 1996-2003, from the Ministry of Labor to Beijing, Shanghai, Jiangsu, Zhejiang and other places have given sufficient basis for the densification period from the policy documents and local regulations, and in practice they have been widely used by employers. use.

Article 37 of the Labor Contract Law, which was issued until January 1, 2008, clearly stipulates that “the laborer may terminate the labor contract by notifying the employer in writing 30 days in advance”, and whether the de-binding period system can still be Whether it is used or not constitutes a conflict with the separation of labor rights granted to laborers by the Labor Contract Law, has become a topic of discussion for a long time.

In this regard, the author believes that the provisions of Article 37 of the Labor Contract Law that the laborer can leave the company 30 days in advance without precluding the right to agree on the advance notice period of the separation between the employer and the employee, For the case where there is no other agreement, the minimum notice period for the employee to leave the company is clearly defined; at the same time, the provisions of the policies and regulations related to the densification period mentioned above are currently valid, so it is necessary to agree on the post of the de-settlement period. If the two parties have clearly agreed on the period of de-binding, they shall be deemed to be valid.

Starting the competition limit

Competition restrictions means that the employer can agree with the employee not to enter the competitors for no more than two years after leaving the company, nor to engage in self-employed businesses with competitive relationships. The application of non-competition restrictions has been a common topic in recent years, and has become a standard for senior managers, senior technicians, and other people with confidentiality obligations. However, we still find that there are various details in the practice. The author will give a few tips on the following points:

• It is recommended that a non-competition agreement be signed when the employee is employed or when the position is promoted. If the employee is required to sign when he or she leaves the company, the employee will generally refuse it;

• You can agree with your employees that you should be subject to non-competition restrictions during your employment and after your departure;

• In order to focus on employee trends, employees can be required to enter a new unit.And provide the company with the in-service certificate and social security payment record of the new unit at regular intervals, and use this as a precondition for the payment of compensation for competitive restrictions;

• In order to increase the flexibility of the employer to apply the means of non-competition restrictions, it may be agreed that the company has the right to waive the non-competition obligation to employees by unilateral notice at any time before, during and after the employee’s departure;

• The amount of compensation for non-competition shall not be lower than the legal minimum standard, and the proposed agreement is to pay monthly, avoid quarterly, semi-annual or annual payments, and pay in full and on time, avoiding three consecutive months. The employee is required to claim the limitation of the competition restriction by paying;

• The method of calculating the amount of liquidated damages or liquidated damages is clearly stipulated in the agreement, so as to avoid only arbitrating damages and thus losing effective remedies when it is difficult to prove the actual losses.

Strictly complete the job transfer process

The perfect transfer process for core technicians can help employers to reduce the potential risks that core technicians may trigger after leaving the company, and assist employers to take over the details and important information that the core technicians are responsible for or master. The proposed measures generally include the following:

• Describe the technical points and content that should be handed over according to the technical section that the employee is responsible for;

• Make as much as possible the job inventions of employees during their employment and potential legal outcomes that may exist within one year of separation;

• Recover the company equipment used by employees and check the integrity of the company’s core technical data in a timely manner, and ask the staff to explain the reasons for the missing and complete the missing parts in the missing part;

• Through the interview, fully communicate the completion of the existing technical work, follow-up work and possible problems.

Follow the attention of core staff and seek relief.

Based on the evaluation of the employer,After some core technicians may or have joined competitors or other institutions that may have an impact on the business and technical secrets of their own units, they should pay close attention to the whereabouts of the core technical personnel and the subsequent research areas and directions.

If there is a breach of contract or infringement by a core technician, the evidence should be collected and fixed in a timely manner. When necessary, if a company letter, a lawyer’s letter is issued to the employee and the other company, or if a civil case such as a competition restriction breach or a trade secret infringement is filed according to actual conditions or the circumstances are serious and the conditions are met, there is also the possibility of criminal reporting.

All in all, the love and hate between the science and technology enterprises and their core technical personnel is also unclear, and they are confused. I only hope that the science and technology enterprises will improve their risk prevention awareness and strengthen their compliance management capabilities. On the other hand, core technicians establish a high standard of professional ethics and demonstrate the spirit of compliance of high-level talents. It’s not easy to fall in love with each other.

This article is from WeChat public account: Kindu Institute (ID: KWM_China) , author: Luhui Wen Li Xin Yang Yang, the original title: “It is so difficult to love someone” – the love and hate of science and technology enterprises and core technicians