Definition and Types of Restrictive Covenants
Provisions on restrictive covenants in Colombian labor law are scarce. The legislation only provides rules for non-compete clauses. Scholars have tried to bring to employment contracts some restrictive covenants normally used for commercial/civil contracts, under the assumption that these clauses may be applicable to employment relationships, as its nature is similar to any other contractual relationship.
Restrictive covenants are therefore allowed, under some general limitations. Any clause that may limit the employee’s right to work (which includes his right to access new employment) is considered ineffective and cannot be enforced by a judge, even if the employee consented to the use of such a clause.
The following restrictive covenants are recognized and may be enforceable under the law:
- Non-compete clauses;
- Non-solicitation of customers;
- Non-solicitation of employees.
Enforcement of Restrictive Covenants—process and remedies
Restrictive covenants may be included in the employment contract (normally used for non-compete clauses) or in separate documents during the employment relationship or after it. A violation of a restrictive covenant during the employment contract can be subject to disciplinary measures from the employer and eventually the termination of the contract with a fair cause. The violation of a restrictive covenant, which intends to apply after the employment relationship ends, can be enforceable through a legal claim against the former employee.
Use and Limitations of Garden Leave
Garden leave practice is allowed in Colombian Labor law. The employer can restrict his employees from attending to work, but the obligation to pay their salary, as if it was a unilateral paid leave, remains. However, this possibility finds a limitation whenever the request from the employer for the employee to receive the unilateral paid leave may lead to a discriminatory measure or possible conduct of harassment against the employee.