How severe are the competition restrictions of large factories? A few days ago, according to the judgment of Beijing Haidian District Court, Baidu's former employee pan mouting filed a lawsuit to return 214800 yuan of non competition compensation and pay 1288800 yuan of liquidated damages and 50000 yuan of compensation for breach of non competition obligations due to the fact that the former employee was found to have violated the non competition agreement.
In order to prove the employment of former employees, baidu also takes a variety of ways to prove it: including sending express to the office address of byte jump, recording videos of former employees appearing in the office area of byte jump, driving and parking in the basement of byte jump, etc.
Finally, the court of first instance supported most of Baidu's demands, but reduced the liquidated damages for breach of non competition obligations as appropriate. Pan mouting, a former employee, needs to return a total of 214800 yuan of Baidu's non competition compensation and pay 859200 yuan of liquidated damages for violating the obligation of non competition. What's going on in this lawsuit? Fund Jun will show you the truth.
Baidu: entry is a violation of the non competition agreement
For the Internet industry, non competition restriction seems to have become a necessary entry. Among big companies, there is naturally a competitive relationship, especially for the old Internet company batj and the rookie byte system in recent years.
Baidu said that it is a well-known Internet company in China. Pan mouting holds the post of senior manager in his company and clearly stipulates the confidentiality and non competition obligations that Pan mouting should undertake and the liability for breach of contract in case of breach of contract in the labor contract. At the time of resignation, pan mouting was clearly informed of the obligation of non competition and the scope of non competition, and Baidu also paid pan mouting the compensation for non competition on schedule.
In terms of the calculation standard of non competition compensation after resignation, the contract stipulates that within one year after the termination / dissolution of the labor contract between the employee and Baidu, baidu shall pay the employee 1 / 2 of the basic salary of the previous year as economic compensation. Once the employee violates the obligation of non competition, it needs to return all the economic compensation paid by Baidu and pay liquidated damages of three times the amount of all economic compensation. In addition, if an employee violates the confidentiality obligation agreed in the contract, he shall also pay compensation of 50000 yuan to Baidu.
Pan mouting joined Baidu in April 2011, signed an open-ended labor contract with Baidu in June 2017, resigned in April 2020 and worked in Baidu for nine years. As a senior manager of Baidu, pan mouting's basic salary standard is also quite high. According to the standard of 1 / 2 of the basic salary, baidu pays 35800 yuan of non competition compensation per month.
On the day of resignation, Baidu sent pan mouting the notice of confidentiality and non competition obligations, which showed that: "The company hereby reminds you that the term of your non competition restriction is within one year from the date of dissolution or termination of your labor contract / labor relationship with the company, i.e. from April 3, 2020 to April 2, 2021. During this period, the company will pay you a monthly non competition compensation of RMB 35800 / month as agreed. ·························································································· Including but not limited to today's headlines, Beijing byte Beating Technology Co., Ltd. and its affiliates... "
After leaving the company, from April to October 2020, baidu paid pan mouting full compensation for non competition on a monthly basis. Later, baidu suspended the payment of non competition compensation due to Baidu's discovery that Pan mouting had worked in Beijing without permission. Both parties reduced pan mouting's non competition period to six months during the arbitration trial.
Baidu believes that Pan mouting's violation of the labor contract and working in a competitive company has violated the obligation of competition restriction, which has had a great impact on the normal operation and management of the company and caused huge losses to the company. Baidu asked pan mouting to pay liquidated damages for breach of non competition obligations, return non competition compensation, pay compensation for breach of confidentiality obligations, and continue to perform confidentiality obligations.
In view of its competitive relationship with today's headlines, Baidu has issued web screenshots and litigation materials of byte jump company, which show information such as "today's headlines enter the search engine and challenge Baidu", "today's headlines challenge Baidu Google", Beijing byte jump technology company suing Beijing Baidu Netcom Technology Co., Ltd. and Baidu online company to stop unfair competition.
Employee: shooting videos violates privacy
Pan mouting said she did not recognize Baidu's responsibility for violating the obligation of non competition. It believes that it does not belong to the qualified subject of non competition, and there are too many subjects of non competition agreed by Baidu, which limits pan mouting's freedom to choose a job. After his resignation, he joined Beijing wanzeyuan Technology Co., Ltd., which has no competitive relationship with Baidu, and his position and work content are not competitive with Baidu.
According to the evidence provided by Pan mouting, he signed a three-year labor contract with wanzeyuan company in April 2020, with a monthly salary of 75000 yuan, and wanzeyuan company paid Beijing social security for him.
Then why does Baidu believe that Pan mouting is working in Beijing? Baidu conducted multiple investigations and presented relevant evidence:
- E-mail delivery list, e-mail query information and certificate of evidence collection data preservation, e-mail No. 11xxxxxx1978, addressee pan mouting, address: XX square, building x, yard XX, North Third Ring West Road, Haidian District, Beijing / today's headlines; On September 20, 2020, the mail was signed by the mail room.
- Video recording and corresponding notarial certificate from July 21 to August 7, 2020. In the first minute and 12 seconds of the video on July 21, 2020, a woman wearing a hat, mask, white short sleeved jacket and blue skirt entered the elevator room, and in 2 minutes and 57 seconds, the person entered the office area marked with "byte beating". The video shows that the address of the office area is courtyard 43, North Third Ring West Road, and the building body is marked with "byte beating"; On July 22 and 23, a woman wearing a hat, mask, red short sleeved jacket and black trousers appeared in the same place; On July 27, 29 and August 5-7, a woman wearing a mask entered the above places. In addition, it shows that Pan mouting drove and parked in the basement of "byte beating" for many times.
- Photos showing the appearance information of Pan mouting.
In view of the evidence provided by Baidu, pan mouting did not recognize the purpose of the mail delivery form, mail query information and the certificate of forensics data preservation, saying that the signing in of the mailroom could not prove that she had received it or that she went to work in the company. Pan mouting believes that the shooting of the video violates the privacy of the photographed without the permission of the photographer, and the video source is illegal. The video content also does not show that he has entered the office of byte beating company, which is not enough to prove that he has joined byte beating company.
In fact, similar means are often used in investigating non competition restrictions. According to media reports, some companies will ask the front desk of the company for the whereabouts of former employees and secretly record them, or ask private detectives to track the video. There are even companies that will check the company's temperature registration form to prove that employees do come here to work after job hopping. In addition, the company will send express to the current company where the resigned employee is located, and the signed record can be used as evidence of the employee's entry into the new company.
Source: Netease digital reading
Similarly, baidu also questioned the labor relationship between Pan mouting and WAN Zeyuan: it believed that the authenticity of the labor contract submitted by Pan mouting could not be confirmed, which was signed by Pan mouting in order to avoid competition restrictions, and its real employment situation and entry unit were not in Wan Zeyuan company. And wanzeyuan company is now operating abnormally and can't afford pan mouting's high monthly salary. For the records of Beijing social security, it is also believed that Pan mouting paid in order to avoid the obligation of non competition.
Court: moderately reduce the amount of liquidated damages
In fact, non competition agreements have a long history and are popular in the Internet industry where business highly depends on technicians. At first, non competition restrictions were mainly aimed at senior executives and core employees of the company, in order to prevent them from using their special status to damage the interests of the company.
According to the labor contract law, non competition personnel are limited to three categories of employees: senior managers, senior technicians and other personnel with confidentiality obligations. However, in judicial practice, there is no unified standard to define these three types of personnel, and the court generally will not invalidate the agreement on the grounds that the employees do not have the obligation of confidentiality.
So, does pan mouting violate the obligation of non competition because she works in Beijing? The court of first instance gave a positive result under the consideration of comprehensive evidence.
The court said that Pan mouting parked her vehicle in the basement of the office area of byteco for many times from July 27 to August 7, 2020, and went in and out of byteco for many times during working days. Although pan mouting claimed that the reason for going in and out was an appointment with a friend and visiting a friend, she did not provide evidence to prove it. Pan mouting failed to make a reasonable explanation for her behavior and should bear the adverse consequences of failing to provide evidence.
After confirming that Pan mouting's behavior was indeed a violation of non competition business, the court also ruled on whether the amount of liquidated damages agreed by both parties was too high. Previously, the labor dispute between Baidu and pan mouting was ruled by the Beijing labor and personnel dispute arbitration commission, and the liquidated damages for breach of non competition obligations was 644400 yuan. Baidu claims that the amount of liquidated damages is 1288800 yuan.
Pan mouting said that the amount of liquidated damages set by Baidu is too high and should be lowered, and its rights and obligations are obviously unbalanced. He did not know Baidu's trade secrets, and Baidu did not prove that Pan mouting caused losses to the company, so he did not need to perform the obligation of confidentiality and bear compensation.
The court of first instance held that the amount of liquidated damages claimed by Baidu was indeed too high and should be reduced at its discretion. After considering the comprehensive situation of the case, pan mouting was ordered to pay 859200 yuan as liquidated damages for breach of non competition obligations to Baidu. For the compensation for breach of confidentiality obligations, the court held that there was no basis and did not support the claim.
Finally, the court ruled that Pan mouting returned Baidu's non competition compensation of 214800 yuan, paid 859200 liquidated damages for breach of non competition obligations, and continued to perform her confidentiality obligations to Baidu.
Trainee reporter / Yan Ying