Have you been asked to sign a non-compete agreement in Florida? If so, it is important to be aware of the legal issues surrounding a non-compete agreement in Florida — and your rights. Dedicated professionals in employment law can advocate for your legal rights. But first, you need to know what’s legal and what’s not.

What is a Non-Compete Agreement?

It is an agreement typically between an employee and an employer that addresses the issue of competition. It can cover a variety of provisions, but the main component of a non-compete agreement in Florida is language wherein the employee agrees not to compete (either directly or indirectly) with the employer’s business for a certain period of time following his/her employment.

Non-compete agreements can cover anything from concerns about taking clients or utilizing proprietary or other valuable information/ideas that would be in direct competition with the company. Depending on the agreement, the language could be very specific or couched in very broad terms. The agreements are not restricted to regular employees. They can also include contractors, consultants, or even individuals involved in the sale of a business.

What Are the Laws in Florida that Address Non-Compete Agreements?

Florida’s non-compete statute, Fla. Stat. § 542.335, is under Title XXXIII for the Regulation of Trade, Commerce, Investments, and Solicitations. A non-compete agreement is enforceable if it is supported by a “legitimate business interest”. If there is no legitimate business interest to protect, the agreement will not be enforceable. A legitimate business interest may include but is not limited to:

• Trade secrets
• Other valuable professional or confidential business information
• Substantial relationships with specific prospective or existing customers, patients, or clients
• Customer, patient, or client goodwill associated with a specific geographic location, marketing, specialized training, or other business practices associated with the trademark, etc.

The above may include client lists, client data, product information, sales tactics, and restrictions of competition in geographical areas including a city, county, or even a larger geographic region.

How Do I Know if the Agreement is Legal and/or Enforceable?

Experienced employment law attorneys work with diverse clients and industries regarding non-compete agreements all the time —including potential wrongful termination cases. They can help answer questions and fight for your rights as an employee/former employee. The general aspects of the law can be complicated, but the good thing is that the initial burden of proof for the “legitimate business interest” is on the employer.

If the employer does succeed in proving the business interest is legitimate, an employee can still attack the agreement if it is overbroad, for example, or otherwise defective. As a general rule, the shorter the time frame and the smaller the geographic area — the easier the agreement is to enforce. It should be noted that if the geographic area is too broad, for example, a court may rewrite the overboard provision to save the agreement but on more narrowly defined terms.

What Are the Different Ways to Enforce a Non-Compete Agreement in Florida?

There are a variety of ways the law allows these types of agreements to be enforced. Depending on the details and the severity of the case, employees/former employees may have the following options:

• Obtaining a temporary or preliminary injunction
• Obtaining a permanent injunction
• Awarded monetary damages, including unpaid wages and commissions
• Filing a claim against a third party (such as a new employer)

If you have refused to sign a non-compete agreement and were later terminated, you could have a case for wrongful termination.

What Would Make a Non-Compete Agreement in Florida Not Legal?

Most challenges to a non-compete agreement are based on a claim that the language is overbroad or that it unfairly hinders an employee’s ability to find work in his/her field. Depending on your position within the company, a non-compete agreement could be a true overreach and considered unnecessary and therefore unlawful.

As mentioned above, the time frame included in the contract is important as well. If it amounts to an ordinate amount of time that would be particularly punishing on the individual, you may have a case too. In Florida, two years is a pretty standard restriction. Some courts have allowed additional time, even up to three years, but every case turns on the facts of the particular employment relationship, business interest at issue, and scope of the restrictions in the agreement.

What Else Do I Need To Know?

Sometimes, if an employee refuses to sign a non-compete agreement, employers will not go as far as firing the individual but can create a hostile work environment. If this occurs, the employee may have a different type of case that is included under employment law. You may qualify and be entitled to remedial actions under the law for:

• Sex, Age, or Race Discrimination
• Sexual Harassment
• Whistleblowing
• Workers’ Compensation Retaliation Claim Filing

It is important to understand that you, as an employee, have a number of rights that are covered by state and national laws.

What Should I Do if I Feel I May Have a Case Against My Employer?

The law addressing non-compete agreements is complex. Attorneys specializing in advocating for the rights of employees can help. If you have questions surrounding a non-compete agreement in Florida, contact Wenzel, Fenton, Cabassa P.A. today.

Our employment law attorneys are experienced in protecting employees related to non-compete agreements as well as workplace discrimination, wrongful termination, retaliation, bullying, and much more.

You don’t have to deal with it alone. We understand what you are going through affects more than just you. It affects your family too. Whether it’s financial or emotional, workplace violations can have a larger impact than most are aware. That’s why we tackle any workplace violation aggressively and with you and your family in mind.

FLORIDA NON-COMPETE AGREEMENTS: FREQUENTLY ASKED QUESTIONS

What Does a Non-Compete Agreement Cover?

A non-compete agreement is essentially a written contract that addresses the issue of competition. It is typically drafted to cover a certain period following the end of your employment with the company. There are a variety of areas that a non-compete agreement addresses. These include but are not limited to:

• Client relationships, lists, and associated data/contact information
• Proprietary or sensitive information
• Valuable ideas and trademarked business practices in direct competition with the company
• Trade secrets
• Clients, patients, and customers within a specific geographic location

The language of the non-compete agreement in Florida can range from extremely broad to very specific, which is particularly important when it comes to your legal rights. If you have been fired for violating an employment agreement, a non-compete attorney can examine the contract and specific language to determine if you may have a case.

Did you know non-compete agreements are not limited to regular employees? They may be utilized with contractors, consultants, and with outside professionals that are involved in mergers and acquisitions.

How Long is a Non-Compete Agreement Valid?

Curious how long non-compete agreements last? Non-compete agreements must be limited to a reasonable amount of time. Employees do have to make a living once they leave an employer — and the legal system understands that. Typically, a non-compete agreement is considered valid for up to six months or as long as two years or more. Depending on the language of the particular employer/employee agreement, a Florida court can decide that it could be valid for up to two years. But — it is up to the employer to prove that the time restriction is reasonable, not the employee. Non-compete agreements are usually presumed invalid after two years, though there are occasions where a longer period of time may be appropriate.

Should I Sign a Non-Compete Agreement?

This depends on a couple of things. How much do you want the job? What parameters are you willing to deal with if or when you leave the job? Since a number of employers will include signing a non-compete agreement as a necessary condition of your employment, taking these questions into consideration is important.

As mentioned above, the actual details in the non-compete agreement will assist you in your decision on whether or not to sign it. Do you clearly understand the details and the implications of signing the document? Will it be overly burdensome after you leave the company? This is critical information.

How Enforceable is a Non-Compete Agreement?

Enforceability of these agreements presents unique, fact-sensitive considerations. That is why it is essential to consult with an experienced non-compete lawyer. They have the legal knowledge to review and analyze comprehensive agreements between you and your employer (or former employer).

The Florida law that addresses non-compete agreements is found in Fla. Stat. § 542.335, under Title XXXIII for the Regulation of Trade, Commerce, Investments, and Solicitations. In general terms, the agreement is enforceable if it is supported by a “legitimate business interest,” which could include restrictions of competition in particular geographical areas, sales tactics, product information, client lists, etc., as listed above.

Consider this as a general rule — the smaller the geographical area and the shorter the time frame, the easier it is for the non-compete agreement to be enforced. The courts will often consider these types of employment contracts to be reasonable under the law. But note — many employers will draft employment agreements that are quite broad, intentionally making it confusing (and even intimidating).

How Effective Are They?

The exact language of the contract has a big role in its effectiveness. A non-compete agreement can make a considerable impact on an individual’s ability to make a living after leaving an employer, particularly if the language is vague and confusing. If the terms of the agreement are for an extended period of time, it can be incredibly difficult for someone to stay in their desired profession. Therefore, the decision to sign one of these contracts should be taken very seriously. An employment law attorney has the capability to review, analyze, negotiate, and restructure employment contracts such as non-compete agreements, severance, or other similar documents.

How Do They Get Legally Enforced? What are My Options?

Employees and former employees have a number of legal options regarding the legal enforcement of Florida non-compete agreements. When you are looking for potential ways to get around it, you may be able to get a temporary, preliminary, or even a permanent injunction preventing the enforcement of an agreement. You may also be awarded monetary damages for unpaid wages and/or commissions if you prevail. Another option could be filing a lawsuit asking the court to declare your rights under the agreement (a “dec” action.) Most of the time, however, it is the employer who takes action to enforce the agreement, which may include action by your employer/former employer against your new employer. This litigation moves quickly and is very costly. Carefully evaluating the agreement before you are potentially in breach is key.

Any legal options you may choose should be carefully considered. One may be more appropriate than others depending on the language of your non-compete agreement and the circumstances of your employment. If you left the company under duress or if the agreement was set up for an unreasonable amount of time, your best legal courses could be different. A non-compete lawyer can confidentially discuss your options for your situation.

What can Void a Non-Compete Agreement?

Voiding a non-compete agreement is not easy, but it is possible. There are certain circumstances that could lead to making it null and void. One scenario is if you can prove you never signed the contract. Another possibility is if you can prove that the contract is not in the public interest. Were you terminated without a valid reason or part of a mass layoff at your company? This could also be an avenue to pursue when voiding a non-compete agreement.

Are You Subject to a Non-Compete Agreement?

This might be confusing for you, depending on the language of the agreement. If the language was very vague or broad, a non-compete lawyer should review it to determine your legal obligations. The same tenant applies if the employment agreement was for an extended period, such as more than two years.

It may not be valid, and Florida workers have a right to pursue their chosen careers — and hold employers accountable if they have violated the law.

What You Should Do Prior to Signing an Employment Contract With a Non-Compete Clause?

If you are currently being offered a new job and have been asked to sign an employment contract with a non-compete clause, it is advisable to consult with an experienced employment law attorney prior to signing. The attorney can thoroughly review, analyze, and explain to you what the contract really means. If the legal language is vague or the terms are not acceptable to you, it could be incredibly wise to negotiate the contract.

The excitement of getting offered a new job can sometimes be an obstacle to critical analysis. The future of your career could be in jeopardy if you sign a highly restrictive contract. An employment lawyer works hard to ensure the interests of you and your family are taken into account.

Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.