In Colombia as in many other Latin-American countries, non competence clauses are enforceable for the duration of the employment contract. This means that the restriction will disappear once the labor relationship is terminated.
The fact is that according to Article 26 of the Labour Code, parties in a labor relationship are allowed to agree an exclusivity duty by the employee during enforcement of the employment contract. Likewise, Article 44 of the Labour Code prohibits the employer to agree that such restriction extends beyond the term of the employment contract.
In the same manner, non solicitation clauses are construed under our legal system as restrictive covenants. The foregoing since our constitutional provision protects occupational freedom (“libertad de oficio”).
In this sense, non competence and non solicitation clauses would be unenforceable from a legal perspective. Therefore the breach of these duties by the employee does not generate a legal sanction nor a liability to face an unfavorable judgment. However, we consider appropriate to include these restrictive covenants in the employment contracts, since it could generate a moral commitment that could help the employer to protect the loss of valuable information and assets.
On the above, it is important to mention that agreeing to a clause of this kind – after the term of the employment contract – could be ineffective without compromising the validity of the contract, since the law expressly provides it.
Given that the absence of this restrictive covenant may compromise certain privileged and confidential information that is held by the former employee, the law authorizes the employer to include on the initial employment contract a confidential information clause that could cover a period of time considered relevant even after the termination of the contract.
