PART 2 – The NDA clause in North Macedonia
In the legal framework of Macedonia, particularly within employment law, there exists a fundamental legal obligation concerning the preservation of business secrets. This obligation is of utmost importance and is treated with significant gravity by the legislator in the realm of legal relationships between employees and employers.
This legal duty entails that employees are prohibited from utilizing, for their personal gain or disclosing to any third party, any data categorized as a business secret by the employer. Such categorization is determined by a special act established by the employer or through any other means of knowledge transfer.
As a result, employees are held accountable for any inadvertent release of a trade secret, whether they were aware of the confidential nature of the information or should have reasonably known about it. Additionally, all employees who come into contact with materials, information, and data classified as confidential are obligated to maintain strict confidentiality (NDA).
Furthermore, representatives of workers and any experts assisting them must refrain from disclosing any information related to the employer’s business interests that was shared with them in confidence, even after the termination of their mandate.
Our law firm strongly recommends that clients enact a dedicated legal instrument for safeguarding confidential information. This instrument serves to meticulously define the scope of information deemed confidential, establish explicit safeguards, delineate the prescribed marking mechanisms, and specify any unique categorizations for data warranting heightened confidentiality. Furthermore, this instrument will furnish precise guidelines and delineate circumstances under which a breach of the duty to protect confidential information is recognized, elucidating the corresponding consequences that may ensue in such instances.
Employees will receive comprehensive information regarding this obligation, and the existence of the aforementioned legal instrument will facilitate continuous reference and serve as a constant reminder of their responsibilities in this regard. This ensures that the workforce remains well-informed and cognizant of the stipulations outlined in the act, promoting adherence to the established protocols for the protection of confidential information.
In specific cases, and subject to conditions and limitations outlined by the law, there may be instances where the employer is not obligated to share information or seek consultation when such disclosure could significantly disrupt or cast doubt on the functioning of the employer, based on objective criteria.
An intriguing aspect to consider pertains to the temporal validity of this obligation under employment law. Specifically, does the obligation persist, and if so, for what duration following the termination of the employment relationship for the employee?
Addressing this, it is imperative to clearly stipulate the post-employment duration during which the obligation to protect confidential information remains in effect.
However, it’s noteworthy that the legislator does not specify any timeline regarding the duration of the employee’s obligation to maintain confidentiality after the termination of the employment relationship.
We, as a law firm, emphasize the significance of establishing a precise time frame for this obligation. It is advisable, in consultation with clients, to clearly define the duration of this commitment, even if it is intended to be indefinite.
Furthermore, the Macedonian legal system lacks clarity when it comes to outlining the consequences that may be imposed on employees who breach this confidentiality obligation. This is a significant legal gap that requires attention and resolution.
By incorporating a well-defined timeframe and consequences into the legal instrument, such as a (NDA) non-disclosure agreement, employers can establish the period during which former employees are bound by the duty to uphold confidentiality even after the cessation of their employment. This ensures a structured and legally sound framework governing the temporal scope of the confidentiality obligation beyond the termination of the employment relationship.
Ana Tosic Chubrinovski – Managing Partner