44 In Florida Digestive Health Specialists, LLP v Romon E. Colina, M.D. LLC, 192 So.3d 491 (Fla. 2d DCA 2015), the Florida District Court of Appeals held that the question of whether the employee – against whom an injunction was sought – would suffer greater harm as a result of the imposition of the injunction should not be taken into account: since the non-compete obligation set out in Article 543.335(1)(g) expressly prohibits such a consideration. In making this decision, the second TCA relied on an earlier opinion of the First TCA in Depuy Orthopaedics, Inc.c. Waxman, 95 So.3d 928 (Fla. 1. TCA 2012). For example, you can write the non-competition clause to prohibit competition for the duration of employment and one year after separation.
Section 542.335 contains several rebuttable presumptions as to the length of the period of application of a non-competition agreement. Be sure to read the articles of association and ask yourself whether the period of performance contained in your non-compete obligation must correspond to the presumptions provided for by law. For example, in the case of non-compete obligations between the seller and buyer of a company, a court must consider that a term of 3 years or less is reasonable and that a performance period of 7 years or more is inappropriate. This does not mean that a non-compete obligation for 10 years is totally unenforceable. Instead, the enforcement party must overcome the presumption that a 10-year period is inappropriate. Courts outside of Florida have been particularly concerned about a provision of Florida law that prohibits courts from considering whether enforcing the non-compete code will cause economic hardship to the employee. For more information on employment contracts, including non-compete obligations, please visit our firm`s website. Florida law allows courts to enforce a non-compete clause through “any reasonable and effective remedy.” The most common remedy is an injunction. An injunction will require the employee to stop any conduct that violates the non-compete obligation. If you learn that an employee or former employee is violating their non-compete code, you must take steps to enforce the agreement. Depending on the circumstances, this may involve different approaches or steps.
Don`t be too broad when drafting time, place, and scope bans. Keep restrictions on each employee`s actual work and what is needed to protect your appropriate business. The following legitimate business interests are listed in the Non-Competition Code: If not properly drafted, your non-compete obligation may be void and unenforceable. So, if your business is worth protecting, it`s worth hiring Sheppard & Condon`s experienced labor lawyers to draft your non-compete obligations. Florida`s non-compete clause under challenge Criticism of Florida`s non-compete clause is not new. It should be noted that, unlike other legislative measures adopted by Florida on the basis of a uniform code developed by a Committee of Experts to promote uniformity among States,22 there is no single accepted non-compete obligation. As a result, the way states deal with non-competitive restrictions varies considerably. At one end of the spectrum, California does not allow non-compete obligations except in connection with the sale of a business.23 As a result, California is considered a worker-friendly state. At the other end of the spectrum is Florida, which is considered the most employer-friendly nonconformance code in the country.24 Despite the well-known and accepted diversity in state noncontest laws, criticism of Florida`s nonconcipation code appears to have been more intense and at a higher level in recent times. • Criticism of the New York Supreme Court – The New York Court of Appeals (the state`s highest state court) in Brown & Brown, Inc.
v. Johnson, 34 N.E.3d 357 (2015), refused to enforce Florida`s noncontraction code because it violated public order. In the words of this court, the law failed the “truly disgusting” test.25 A non-compete clause protects an employer`s legitimate business interests, but it can give the impression that it is punishing you, the employee. A non-compete clause can make it incredibly difficult for you to find another meaningful job in your area of expertise and expertise. And an employer that tries to enforce a non-compete clause and fails ends up paying the dominant employee`s legal fees and expenses, and sometimes pays the employee monetary damages for unauthorized interference in an employment relationship if they cost the employee a job. Smart employees consult a lawyer before signing a non-competition clause to be informed of their rights. Even if you signed without seeking advice, you can still have legal arguments to overcome your non-compete obligation. You may be wondering how to get out of a non-compete agreement by simply asking. The answer may depend on your relationship with the other party and whether or not there are gaps in the agreement that you may challenge. In some cases, a settlement or redemption may be possible. • Other out-of-state courts find non-competition with public order – In addition to New York, the 11th District and federal district courts in Florida, other courts outside the state have dealt with § 542.335 and have found that Florida`s non-compete code is too strict and should not be enforced. Non-compete obligations can perform several functions.
You can restrict current and former employees of: This article provides a general understanding of non-competition in Florida and answers other frequently asked questions about these agreements. For example, companies often argue that their customer lists are a trade secret that deserves to be protected by a non-compete obligation. However, customer lists aren`t always as secretive as they`d have you believe. With the amount of information made available to the public on the Internet, most of the information in a customer list could easily be obtained from anyone else. It is up to the employer to defend the reasons for its non-compete obligation. When enforcing a non-compete agreement, a party must demonstrate that it has a legitimate business interest that supports the non-compete clause. Florida law defines legitimate business interests as follows: If your field is highly competitive, a non-compete obligation may be necessary. However, you can`t be expected to avoid a particular job area or geographic area forever.
So how long is too long? Most Florida courts won`t enforce agreements longer than two years, but there are longer time restrictions. For obvious reasons, it is also crucial that the employer indicates which places are covered by the non-compete obligation. Under Florida law, there is a presumption that a non-compete obligation of six months or less is appropriate. Similarly, a non-compete obligation of two years or more is considered inappropriate. Each of these presumptions can be rebutted by both parties. In order to overcome the presumption, the party must prove by a preponderance of evidence that the presumption should not be maintained. Not all states allow enforcement of the Non-Competition Act, but Florida is one of the few to do so. If you have questions about an agreement that an employer should sign on your behalf, or if your former employer prevents you from looking for the job you want, fill out the form or call Florida Non-Compete Lawyers at Scott • Wagner and Associates in Jupiter, Florida. We advise and represent people in their situation.
Another option could be to change career paths or get involved in companies that are not limited by the agreement. This approach allows you to learn a new industry or industry while waiting for the duration of the non-compete obligation. 13 In 1953, Fla. Stat. §534.12 and finally by Fla. Stat. §534.33 replaced. In 1996, the current non-compete obligation was issued. While White`s opinion did not refer to cases that criticized Florida`s non-compete agreement, White`s wording addressed (but did not go directly into) criticisms — including prohibitions on considering hardship for the employee and using contract design rules to interpret a non-compete agreement narrowly or contrary to the restriction.
Cueto Law Group is a Miami-based boutique law firm whose lawyers handle business transactions and litigation. Founded by international business lawyer Santiago Cueto, the firm regularly provides legal advice to individuals and companies on the terms of non-compete obligations that protect their company`s confidential information. Non-compete obligations may also be enforced if the employer can prove that it has trade secrets that have been taken over and used by the employee or if the employee has received extraordinary or specialized training with respect to the employer`s unique sales, marketing or business practices. On the other hand, Florida courts have generally been reluctant to enforce non-compete obligations if the employee has not included and uses confidential or proprietary information that would result in unfair competition. • White apparently goes beyond the issues presented – In fact, it can be argued that the Florida Supreme Court`s opinion in White went beyond what was necessary for the exact question, likely to provide clarification and advice to the lower courts regarding Florida`s non-compete obligation. Although the Tribunal found that the appropriate scope of the agreements was not before it,55 there was substantial guidance of the adequacy requirements and the specificity of the facts of the application of the law. However, there is a blank language that suggests that the interests and difficulties of the employee cannot be completely ignored. The Court noted that the obligation of non-competition must be compared to history, that contracts restricting trade are generally illegal, and that the law constitutes a split or exception to such a general prohibition that “strikes a delicate balance between legitimate commercial interests and a person`s inalienable right to work.” 57 The inalienable right to work is protected by the Florida Constitution.58 First, you must remind the employee of his or her obligations under his or her non-compete obligation.