In the current economic context, an increasingly acute concern of any entrepreneur is to ensure qualified human resources. At the same time, protecting sensitive information is also essential for maintaining a competitive advantage for any type of business, regardless of size or field of activity.
Although the two key elements for any business – human resources and business secrets – may seem, at first glance, incongruous, in practice they are complementary ingredients of commercial success. Carefully dosed, the two ingredients intertwine organically and enhance each other.
If the human resource is the common, basic ingredient in this recipe, in the following we set off to explore the more “exotic” ingredients – confidential information, trade secrets and know-how – and how they come to complete the recipe for commercial success in this context.
And how could we best understand the flavors of any recipe, if not in the kitchen? So, let’s imagine a restaurant kitchen, where an employee finds, while washing the dishes, a diary page with the salaries of all employees, alongside with notes, sketches and calculations regarding the imminent reorganization of the business and the projected consequences on each employee.
Such note discovered by chance is a classic example of confidential information – data that is not public, considered sensitive by its owner. These can include a wide range of information, from financial data to business strategies and employee information.
This kind of sensitive information for any business and its proper management at the employee level is (or should be) protected, mainly, by confidentiality clauses in personnel contracts. Such clauses will have to regulate the obligations and restrictions that should be imposed on employees, within the limits set by national and European legislation, doctrine and jurisprudence, as well as the sanctions for unauthorized disclosure.
But let’s go back to the kitchen and imagine that on the lost sheet of paper there were no strategic ideas or information about salaries, but the list of ingredients and quantities required to prepare the most popular product on the menu, a product for which the restaurant had become recognized, famous and sought after.
In this case, we would be dealing with another category of confidential information, namely business secrets, which are also sensitive information, but with commercial value.
Trade secrets enjoy specific legal protection in Romania and it is recommended that the relevant legislative provisions be rigorously harmonized and coherently integrated with the confidentiality clauses in personnel contracts, regardless of whether we are talking about employees with individual employment contracts or collaborators based on civil contracts.
Returning to the example of the kitchen in the restaurant, although the disclosure of the list of ingredients and quantities to competitors would obviously be likely to cause damage to that business, it is unlikely that, in the absence of a recipe that describes in detail the preparation process, the dish in question could be reproduced in a similar manner.
Such disclosure of the complete recipe would represent a leak of know-how – namely those business secrets with exceptional commercial value, which usually crystallize innovative processes and procedures, perfected with significant research / development efforts.
As a special form of trade secret, the know-how within the business is recommended to be additionally protected, through mechanisms for protection of intellectual/industrial property, regardless of whether it is developed by the company through job attributions / innovative missions specifically traced to the employees or – especially and particularly – when it is developed by employees within the company.
Returning to our restaurant, let’s assume that it is one classified in the Michelin Guide where we know that, although the recognition is granted to the restaurant, the classification was obtained thanks to the talent of the chef, who is an employee and not the owner of the business, and who developed the award-winning menu and refined innovative preparation techniques and recipes during the time he worked in that restaurant.
Such a particular case of the know-how developed by employees in the context of service relationships best illustrates the need to find the perfect balance between providing an attractive environment for highly qualified employees, on the one hand, and the need to protect – and preserve – sensitive commercial information within the business, on the other hand.
