#CostaRica 🇨🇷 #BDS_Article: "Shhh! It’s a secret!”: Confidentiality in Employment Relationships

In modern society, information is one of the most valuable intangible assets of any organization; therefore, it is standard practice to prevent the disclosure of data that provides a competitive advantage.

During the course of employment, employees gain access to valuable information by virtue of their duties, which makes it essential to understand the obligations and prohibitions concerning the handling of such information.

The Labor Code mentions the duty of confidentiality in only two specific provisions:

ARTICLE 71.- In addition to those contained in other provisions of this Code, its Regulations, and its supplementary or related laws, the obligations of employees are:

(…)

g. To rigorously safeguard technical, trade, or manufacturing secrets related to products in which development they directly or indirectly engage, or which they become aware of due to the nature of their work; as well as any confidential administrative matters, the disclosure of which could be detrimental to the employer (…).”

“ARTICLE 81.- The following are fair causes for the employer to terminate the employment contract:

(…)

e. If the employee discloses the secrets referred to in subsection g) of Article 71; (…).”

Additionally, the Undisclosed Information Act also imposes a general duty of confidentiality in both employment and commercial relationships:

“ARTICLE 7.- Confidentiality in employment or commercial relationships. Any person who, by reason of their work, employment, position, profession, or business relationship, gains access to undisclosed information as defined in the first paragraph of Article 2 of this law, and has been expressly warned of its confidential nature, must refrain from using or disclosing it without the owner’s consent, even after their employment, profession, or business relationship has ended. (…).”

From the above-referred regulations, we can conclude the following:

1. There is indeed a duty of confidentiality that employees must observe regarding their employer’s undisclosed information.
2. The duty of confidentiality is indefinite, as it survives even after the employment relationship has ended.
3. A serious breach of the duty of confidentiality may constitute grounds for dismissal without employer liability.

Now, is all employer information confidential? Clearly, the answer is no. To hold an employee accountable for infringing the duty of confidentiality by disclosing information, the employer must prove that they informed the employee of the information's confidential nature and that reasonable security measures are in place to safeguard such confidentiality.

In general terms, the Undisclosed Information Act itself establishes that for certain information to be considered protected, it must meet at least the following criteria:

1. It must be secret, in the sense that it is not – as a whole or in the precise arrangement and assembly of its components – generally known or readily accessible to individuals within the settings where this type of information is normally used.
2. It must be under the legal control of a person who has taken reasonable and proportional measures to keep it secret.
3. It must have commercial value because of its secret nature.

It should be noted that it is not enough for employees to sign generic confidentiality clauses stating that they must safeguard their employer’s secrets; it is also essential that the information intended to be protected is properly classified, and that appropriate procedures and protocols are in place for this purpose.

Lucía Solórzano

Consulting Manager, BDS Asesores