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
Generally, non-disclosure agreements, commonly called NDAs, serve as legally binding contracts between involved parties, with the primary purpose and the core meaning of those agreements being to safeguard the confidentiality of specific and sensitive information.
Its sensitivity comes from the fact that the information is the company’s valuable intangible asset, which is vital for maintaining competitiveness in the market and achieving its business objectives.
These agreements, often known by various names, such as confidentiality agreements (CAs), confidential disclosure agreements (CDAs), and proprietary information agreements (PIAs), are essential because they serve as safeguards for confidential data.
Regardless of the terminology used, NDAs share a fundamental common principle: they legally forbid any party bound by the agreement from disclosing protected information to unauthorized individuals.
Non-disclosure agreements (NDAs) can indeed be complex and require meticulous attention. It is important to emphasize that the wording within an NDA must be highly specific to ensure enforceability in a court of law. Furthermore, it’s crucial to avoid creating an NDA overly broad or excessively restrictive, as this significantly increases the risk of a court finding fault with it, especially when there are insufficient and clearly defined limitations regarding its scope and duration.
This concept is notably similar to the inclusion of NDA clauses in employment agreements. Such clauses ensure the protection of sensitive information within the context of an individual’s employment, contributing to the overall security of a company’s proprietary knowledge.
We emphasize that NDA clauses are highly effective in safeguarding a company’s trade secrets and confidential information. However, their advantages for employers extend beyond protection and encompass TWO key benefits:
The inclusion of an NDA clause in Employment Agreements serves as a directive that explicitly delineates the highly sensitive and confidential information that necessitates protection. Furthermore, it outlines the potential consequences for employees who violate and breach the terms of the agreement. In doing so, employers provide unequivocal guidance on identifying and preserving their trade secrets and confidential data from the very outset. The NDA clause can also serve as a valuable resource, offering employees clear instructions on how to handle these delicate assets.
While the primary objective of an NDA clause is to prevent employees from divulging confidential information, it’s worth emphasizing that it also serves as a safeguard when there’s a legitimate need to share such information in the normal course of business. In scenarios where employees are required, as part of their job responsibilities, to share disclosed information with third parties, the protection of trade secrets remains intact. This occurs when third parties are also required to sign NDAs, ensuring that the confidentiality of sensitive information is maintained even during collaborative efforts.
It is crucial to emphasize that a trade secret constitutes a highly valuable asset within any business, and the unauthorized disclosure of such information can result in significant and sometimes irreparable harm. A trade secret may encompass vital data that serves as the cornerstone of the entire enterprise. Consequently, safeguarding this sensitive information is of paramount importance and is not only supported by a legal foundation but should also be consistently and diligently enforced.
The NDA clause is a pivotal provision in employment agreements due to its preventive and acknowledgment role, which serves to safeguard the business.
Consequently, it is of utmost importance to treat these agreements with the utmost seriousness and diligence.
Ana Tosic Chubrinovski – Managing Partner