Under Florida law, non-compete agreements are considered restrictions of trade and are construed strictly in accordance with our Bylaws. Non-compete agreements must have supporting consideration and must be reasonable in their geographic scope and timeframe.
Consideration
The consideration for a non-compete may be the job, if it was entered at the beginning of the job, otherwise they must generally have some other consideration, such as an increase in salary or a bonus.
Sanity
Whether a non-compete is reasonable in its geographical and temporal scope depends on the specific situation and the interests that must be protected. When drafting a non-compete agreement for a business client, I generally include factual explanations of the reasoning behind these limitations to guide a court later and improve the document’s enforceability.
How does your non-competition affect you?
So if you have a non-compete agreement and have left that job, it depends on the language of the agreement and the particular circumstances of the situation as to what you can and cannot do. For example, if there was a written employment contract and the employer breached that contract, the non-compete attached to it may not be enforceable. However, if there was no such agreement and waiver, then the non-competition may be enforceable provided it has the requisite consideration and its limitations are reasonable.
How Non-Compete Agreements Are Enforced
Whether the limitations in a no-contest are reasonable is generally a factual determination for a judge. For this reason, the non-competition agreements that the author draws up have the agreed facts incorporated into the document. Without that, the enforcing employer must generally provide separate evidence to prove reasonableness unless specifically deemed reasonable by law.
Agreements that limit future employment to one year or less and are generally automatically reasonable. Those that are between one and two years after employment are usually mandatory. Agreements that go beyond two years after employment are subject to review by our courts. That’s not to say that an employer can’t have a five-year non-compete agreement, it’s just that there has to be a legally valid reason to place such a restriction on a former employee.
Non-compete agreements can also be temporarily suspended if they are violated. A series of cases in Florida determined that if a party subject to a valid non-compete agreement breaches the agreement, the employer does not obtain the full benefit of the limitation during the breach, so while it continues, the limitations are generally suspended until that the breach ceases. . The non-compete then restarts from that point until it runs its course.
What you can and cannot do depends on the agreement you signed and the particular circumstances. Non-compete agreements can also be married to non-disclosure and non-solicitation agreements that will also restrict the use of knowledge gained during employment. Non-disclosure and non-solicitation agreements are not subject to the same limitations as non-compete agreements, and are often much broader, as they are designed to protect the company’s proprietary information.
Summary
The best thing to do is to consult with a Board-certified expert in business litigation or labor and employment law before you, as an employee, take actions that could expose you to liability or before you, as an employer, deliver a release agreement. no competition or no -disclosure to an employee to sign. You can easily find these experts through the Florida Bar Association or local Bar Associations, such as the Palm Beach County Bar Association.
As an employer, if you suspect that a former employee who is subject to a non-compete, non-solicitation or non-disclosure agreement is in violation of the agreement, the best initial action is to consult with a Board-certified expert in business litigation or employment law and labor. You need to know your rights and how the legal process enforces these agreements.
What you don’t want to do is draft these important documents on your own only to find out later that they’re unenforceable, allowing your ex-employee to freely compete with your company armed with the knowledge and experience your company gave them. . Be smart, plan ahead, and consult with a Florida Bar Certified expert in commercial litigation.