CHILE Law and Practice Contributed by: Constanza Contreras, Gabriela Muñoz and Juan Francisco Reyes, SCR Abogados
judicial decisions have upheld the enforceability of post-contractual non-compete agreements, provided they meet the following criteria: • narrowly tailored to the employer’s specific line of business; • limited in time and geographic scope, with dura - tions not exceeding 12 or 24 months following the termination of the employment agreement; • include fair financial compensation in exchange for the non-compete obligation; and • restricted to key employees whose roles are critical to the business. This list is neither exhaustive nor definitive, and future judicial rulings may modify these standards or introduce additional requirements. Accordingly, compliance with these elements does not guarantee enforceability, as courts may still declare the provision void and unenforceable. Conversely, a non-compete clause may be upheld even if not all of these condi - tions are fully satisfied. 2.2 Non-Solicits Non-solicitation covenants are not expressly regu - lated by law, and there is no established judicial crite - rion regarding their enforceability. Nonetheless, under general legal principles, an employer may agree with an employee to include a non-solicitation obligation. The enforceability of such a provision – whether dur - ing or after the termination of the employment rela - tionship – shall be assessed based on its necessity, proportionality and, where applicable, the existence of adequate compensation. It is understood, however, that a breach of such obligation shall not invalidate the resignation of the employee or the client, nor shall it limit their subse - quent engagement by a new employer. 3. Data Privacy 3.1 Data Privacy Law and Employment Pursuant to employment legislation, employers are under a legal obligation to maintain the confidential - ity of all personal information and data pertaining to employees that they access during the course of the
employment relationship. Moreover, general data pro - tection regulations are fully applicable in the employ - ment setting. These rules govern the collection, pro - cessing and storage of personal data – defined as any information relating to an identified or identifiable individual – within databases and registries. The primary data protection obligations applicable to employers in the employment context include the fol - lowing. Lawful Basis and Informed Consent As a general principle, employers may collect and pro - cess personal data only where expressly authorised by statute or with the written and informed consent of the employee or job applicant. Prior to providing such consent – which may be revoked at any time – the individual must be informed of the intended pur - pose of data processing and whether the data will be shared with third parties. Certain exceptions apply: for example, consent is not required when process - ing data that is publicly accessible or relates to gen - eral information such as name, date of birth, address, educational background, and occupation. Consent is also not required when a private employer processes personal data strictly for internal purposes. Sensitive Data Restrictions Sensitive personal data is subject to enhanced protec - tion. It is defined as data concerning an individual’s: • physical or moral characteristics; • private life; • personal habits; • racial or ethnic origin; • political opinions; • religious or philosophical beliefs; • health status (physical or mental); or • sexual life. The collection and processing of such data is permit - ted only with explicit legal authorisation or the express consent of the individual concerned, except where the data is required for the provision of health-related benefits.
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