浅谈竞业协议及国内现状
根据《劳动合同法》规定，竞业人员限于用人单位的高级管理人员、高级技术人员和其他负有保密义务的人员。在实际操作中，竞业协议
的应用范围可能超出传统意义上的商业秘密保护，包括那些不直接涉及商业秘密但可能对原单位构成竞争威胁的员工。特别是在一些大型
企业，如互联网公司，竞业协议的使用更为普遍。
在目前的国内大环境下，竞业限制泛滥已然成为一种趋势，而在互联网、制造业等高新技术产业中尤甚。《竞业限制协议》往往是跟新员
工入职的劳动合同绑在一起签订。“这是我们标准协议”、“大家都签了，没关系的”、“如果不签是没有办法办理入职的”……负责员
工关系的HR也训练出了一套固定话术，诱导威胁劳动者签订。劳动者作为雇佣市场天然弱势的一方，不仅可能没有仔细阅读协议条款的
时间与机会，更没有说“不”的权力。
说说竞业协议的大致内容吧，各个大公司的协议不经相同，但突出的主题都一样：“竞业”变成“禁业”，获取巨额违约金。协议一般
不会按照法律条款申明离职员工需要保护公司的什么商业秘密、那些核心技术等等，在需要保密的责任范围定义基本都是“及”、“以及”
，“等等”这种模糊概念，这就等于说最终解释权归公司所有。离职员工入职一家自以为没有问题的企业，公司会从营业执照经营范围、
服务对象等等各个方面去考量认定是不是违约，很多集团性质的大公司包括子公司基本涵盖了所有行业，离职员工基本无处可逃。曾经有
个同学小W和我讲述，身为一线员工的他做一款公司内部员工使用的PC客户端产品，不存在对外销售，不存在任何商业利益，最后离职时
也被签了竞业。竞业的范围之广基本宣告他在这个行业失业。事后他找律师朋友看了一下协议内容，朋友摇头说，这两页纸里面的内容连
标点符号对你都不利，签这个协议和对你“下蛊”没区别，小W这才细思极恐。
签了竞业协议意味着什么？笔者和很多竞业受害者深度交流过，聆听了他们各自的经历，总结如下。竞业者首先要面临的是无班可上，
需要定期向原司提供个税、社保等信息；二是竞业调查，这个阶段离职者在不知情的情况下，所有隐私都会被调查出来，被各种尾随是常
用手段，冒充税务局、劳动局打电话给竞业者的亲朋好友，手段之多，不寒而栗，最后就像一个裸泳者一样，毫无隐私可言。三是面临巨
额赔偿，这个金额足以让竞业者一贫如洗，更甚者家破人亡，妻离子散。
打工人千万不要用自己的认知挑战公司的下线，勤勤恳恳以为修的仅仅是福报，最后才知道还有绝路。
A Brief Discussion on Non-Compete Agreements and Their Current Status in China
According to the Labor Contract Law, non-compete agreements are limited to senior managers, senior technical personnel, and other personnel with confidentiality obligations in an employing unit. In practical operation, the application scope of non-compete agreements may extend beyond the traditional protection of trade secrets, encompassing employees who do not directly involve trade secrets but may pose a competitive threat to the original unit. Particularly in large enterprises, such as internet companies, the use of non-compete agreements is more prevalent.
In the current domestic environment, the proliferation of non-compete restrictions has become a trend, especially in high-tech industries such as the internet and manufacturing. Non-compete agreements are often bundled with the employment contract for new employees. "This is our standard agreement," "Everyone has signed it, it's fine," "You won't be able to proceed with your employment if you don't sign it"... HR personnel responsible for employee relations have also developed a set of fixed scripts to induce and threaten employees into signing. As the naturally weaker party in the employment market, employees may not only lack the time and opportunity to carefully read the terms of the agreement but also have no power to say "no."
Regarding the general content of non-compete agreements, although agreements vary among different large companies, they all share a common theme: "non-compete" becomes "prohibition of employment," with the aim of obtaining substantial liquidated damages. The agreements typically do not specify what trade secrets or core technologies the departing employee needs to protect, using vague terms such as "and," "as well as," "etc.," to define the scope of confidentiality responsibilities. This essentially means that the final interpretation right belongs to the company. When a departing employee joins a company they believe to be non-problematic, the original company will assess whether it constitutes a breach of contract based on various aspects such as the business scope and service objects stated in the new company's business license. Many large conglomerates, including their subsidiaries, cover almost all industries, leaving departing employees with few options. A former classmate, Xiao W, once shared with me that as a front-line employee, he developed a PC client product for internal use within the company, which was not sold externally and did not involve any commercial interests. Yet, he was still required to sign a non-compete agreement when he resigned. The broad scope of the non-compete clause essentially resulted in his unemployment within the industry. After consulting with a lawyer friend about the agreement, his friend shook his head and said, "Every word and punctuation in these two pages is against you. Signing this agreement is no different from being cursed." Xiao W was horrified upon reflection.
What does signing a non-compete agreement entail? I have had deep conversations with many victims of non-compete agreements and listened to their respective experiences. Here is a summary. Firstly, non-compete individuals face unemployment and are required to provide personal tax, social security, and other information to their former employers regularly. Secondly, they undergo a non-compete investigation, during which their privacy is investigated without their knowledge. Various means such as tracking, following, and secret photography are commonly used. Pretending to be from the tax bureau or labor bureau and calling the non-compete individual's friends and family are also common tactics. The number of such means is chilling, leaving the individual feeling like a naked swimmer with no privacy left. Thirdly, they face substantial compensation, which can be enough to impoverish the non-compete individual, and in extreme cases, can lead to the breakup of their family and the separation of their spouse and children.
Employees should never challenge a company's limits with their own understanding. They may think they are simply working hard for their own benefit, but in the end, they may find themselves at a dead end.
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