For a non-compete agreement to restrict an employee, that employee must actually be able to disrupt your business. In other words, an employee must be aware of what you have identified as your legitimate business interests if you want to bind them through a non-compete agreement. To be enforceable under Florida law, non-compete/poaching obligations must be necessary to protect a party`s legitimate business interests. In addition, the terms of a non-compete obligation must be reasonable in terms of time, geography and business. Whether a non-compete obligation is reasonable falls within the jurisdiction of the court of first instance. Whitby v Infinity Radio, Inc., 951 Sun. 2d 890, 897 (Fla. 4th DCA 2007). Under Florida law (F.S. §542.335), restrictive covenants are acceptable and enforceable as long as they meet certain requirements: Florida`s non-compete clause challenged Criticism of Florida`s non-compete obligation 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. The list of legitimate business interests is not exclusive, which means that other legitimate business interests can be included in the non-compete agreement in addition to the five listed above. In addition, the non-compete agreement can and must list more than one legitimate commercial interest to be protected. Your non-compete obligation should be limited to the geographical area in which you actually do business or where you reasonably plan to do business in the near future. In general, I tell people to assume that their non-compete obligations are enforceable and not to sign them unless they can live with the restrictions. But an employee who has the time, willingness, and resources to fight can often limit or eliminate their non-compete obligations. First, a non-compete obligation in Florida must be made in writing.

In addition, the employee must sign it. 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. The law prohibits Florida courts from considering economic or other hardship of employees caused by the non-compete agreement. Therefore, the employee will not be able to argue that he cannot feed his family if the court applies this agreement. Instead, the court will consider the above factors to determine whether the non-compete obligation is appropriate. A non-compete agreement must identify at least one legitimate business that wishes to protect the enforceable party. If the court concludes that there is no legitimate commercial interest in an enforcement action, it has nothing to protect and the enforcement party will not prevail.

Florida`s non-compete clause lists five categories of legitimate business interests. A non-compete obligation should make it clear that it is attempting to protect at least one of those interests. Legitimate business interests include (i) trade secrets; (ii) confidential information; (iii) customer relationships; (iv) the Goodwill of the Customer; and (v) specialized training. In addition, a company with a consistent history of enforcing non-compete law may be able to anticipate litigation by immediately notifying an employer who will debauch your employee from the non-compete agreement. Florida`s No-Compete Act, which regulates trade restrictions, requires non-compete obligations to meet certain standards. In addition, the Georgia Court of Appeals in Carson v. Obor Holding Company, LLC, 734 S.E.2d 477 (2012), refused to comply with a choice of law provision requiring Florida law to apply to a non-compete agreement. The court, which refused to apply Florida law, stated that under Georgian law, when considering the appropriateness of the restriction, the court must consider and weigh the interests of both parties, including the party restricted by the non-compete agreement.49 Second, once you have identified the legitimate business interests, Then identify which employees in your business structure have access to it. Have information. These key employees and only these key employees should be bound by non-compete obligations. If your former employee has breached a non-compete obligation, you may have several possible remedies.

You can challenge the applicability of a non-compete clause through the Florida court system. When do non-compete obligations last in Florida? The answer depends on the terms of the written agreement, the facts surrounding the business relationship, and the application of these points to Florida law. Finally, the florida non-compete clause allows the winning party to collect the other party`s attorneys` fees. Thus, if the court enforces your non-compete obligation, you should be able to collect legal fees from the employee who violated it. The following legitimate business interests are listed in the non-compete agreement: • New York Supreme Court Review – 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 non-compete clause because it violated public policy. In the words of this court, the law has failed the “truly disgusting” test.25 A court that finds the applicability of a non-compete agreement will consider the nature of the restrictions to determine whether they are appropriate.

If this is not appropriate, a court may restrict the non-compete obligation in any way (for example. B the duration or geographical limit) or, if necessary, cancel the agreement altogether. Under Florida law, non-compete obligations may be enforced by the employer as long as they are reasonable in terms of time and geographic area and protect a legitimate business interest of the employer within the meaning of Florida law. In general, restrictions of up to two years, covering the areas in which the employer actually carries out activities, are deemed appropriate by a court. Even if it is concluded that the restrictions set out in the agreement are unreasonably broad, the court has the power to amend the agreement to impose more appropriate restrictions. This article provides a general understanding of Florida`s non-compete obligation and answers to other frequently asked questions about these agreements. Therefore, it is important that you adapt your non-compete obligation to the employees who are bound by it. The agreement should explicitly state the legitimate commercial interest it seeks to protect. For example, an employee may claim that you are enforcing the non-compete obligation for a discriminatory or retaliatory reason. Or the employee might argue that your past apathy means that the agreement doesn`t really protect a legitimate business interest.

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. As a result, the Brown & Brown court found that Florida`s non-compete clause was “almost exclusively focused on the interests of the employer” in its prohibition on narrowly interpreting restrictive agreements and refusing to consider the harm caused to the employee.36 As such, the New York Court of Appeals ruled that the application of Florida law would violate fundamental public order in New York, and therefore the provision was at the choice of law in Florida on this unenforceable basis.37 Individuals and companies regularly receive sensitive information through various companies and business relationships. A florida non-compete agreement is a standard contract that can protect a company`s confidential information by preventing others from engaging in behavior that competes with your business. A non-compete obligation must protect a “legitimate commercial interest”. In addition, the non-compete obligation used must be `reasonably necessary` to protect that legitimate commercial interest. Some companies require all employees to sign a non-compete clause. This is not a good idea as it could affect the applicability of the company`s main non-compete obligations. 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 […].