Can an employee claim compensation for violating the non compete restriction?

When an employer signs an employment contract with an employee, it often requires the employee to sign a non-compete agreement, which is necessary to protect the employer's trade secrets. This issue is divided into two situations: the employee's breach of the non-compete agreement and the employer's breach of the non-compete agreement. In the first case, if the employer violates the non-compete agreement, the employee may initiate labor arbitration and request the employer to pay severance compensation. If the employer fails to pay the severance for three months, the employee may also request to cancel the non-compete agreement.

In the second case, if the employee violates the non-compete agreement, the employer may initiate labor arbitration and require the employee to pay liquidated damages in accordance with the standard of the non-compete agreement. At the same time, the employer may require the employee to continue to perform the non-compete obligation in accordance with the agreement. If the employer and the employee do not agree on liquidated damages for the employee's breach of the non-compete restriction, the employer may require the employee to bear the liability for compensation in accordance with Article 90 of the Labor Contract Law. Legal basis: Article 25 of the Labor Contract Law of the People's Republic of China: Except for the circumstances specified in Articles 22 and 23 of this Law, the employer shall not agree with the employee that the employee shall bear liquidated damages.

Article 90 of the Labor Contract Law of the People's Republic of China stipulates that if an employee terminates a labor contract in violation of the provisions of this Law, or violates the confidentiality obligation or non-competition restriction agreed in the labor contract, and causes losses to the employer, he shall be liable for compensation.

If an employee violates the non-compete agreement, he or she shall pay liquidated damages in accordance with the non-compete agreement. The amount of liquidated damages shall be subject to the agreement.

Labor Contract Law.

Article 23 The employer and the employee may agree in the labor contract to keep the employer's trade secrets and confidential matters related to intellectual property rights.

For employees who are obliged to maintain confidentiality, the employer may stipulate a non-compete clause with the employee in the employment contract or confidentiality agreement, and stipulate that after the termination or termination of the labor contract, the employee will be compensated monthly during the non-compete period. If the employee violates the non-compete agreement, he shall pay liquidated damages to the employer in accordance with the agreement.

If an employee violates the non-compete agreement, the company may claim compensation in the following ways:

1. In accordance with the agreement, the employee is required to pay the corresponding liquidated damages. According to Article 23 of the Labor Contract Law, if an employee violates the non-compete agreement, he or she shall pay liquidated damages to the employer in accordance with the agreement. In other words, if the two parties agree on liquidated damages in the non-compete agreement, the company can require the employee to pay liquidated damages in accordance with the agreement.

2. Employees are required to compensate for the company's actual losses in accordance with the law. According to Article 90 of the Labor Contract Law, if an employee terminates a labor contract in violation of the provisions of this Law, or violates the confidentiality obligation or non-competition restriction agreed in the labor file infiltration, and causes losses to the employer, he shall be liable for compensation. Therefore, if the parties have not agreed on liquidated damages or the company believes that the liquidated damages are too low, the employee can be required to compensate according to the actual losses.

However, when the company proposes this compensation, the company should also provide proof to prove the amount of its own loss, otherwise the employee may not compensate or appropriately compensate part of the expenses.

3. When the company requires the employee to pay liquidated damages or compensate for losses, it may also require the employee to stop the breach of contract and continue to perform the non-compete agreement.

4. When the company and the employee fail to reach an agreement through negotiation, the company can collect evidence and file a lawsuit with the court, and require the employee to pay liquidated damages or compensate for losses, while continuing to perform the non-compete agreement.