Under Florida law, non-compete agreements are considered restraints of trade and are strictly construed according to our Statutes. Non-compete agreements must have consideration to support them and must be reasonable in their geographic scope and time limits.
Consideration for a non-compete can be the job, if entered into at the start of the job, otherwise they generally have to have some other consideration, like an increase in pay or a bonus.
Whether a non-compete is reasonable in its geographic and time scopes depends on the specific situation and what interests are to be protected. When I draft a non-compete for a business client I usually include factual explanations of the reasoning for these limitations to guide a Court later and to enhance the enforceability of the document.
How does your non-compete affect you
So, if you have a non-compete and have left that job, it depends on the language in the agreement and the particular circumstances of the situation as to what you can and can not do. For example, if there was a written employment agreement and the employer breached that contract, the non-compete tied to it may not be enforceable. However, if there was no such agreement and you quit, then the non-compete may be enforceable as long as it had the requisite consideration and is reasonable in its limitations.
How non-compete agreements are enforced
Whether the limitations in a non-compete are reasonable is generally a factual determination for a Judge. For that reason, the non-compete agreements that the author prepares have the agreed facts embedded in the document. Without that, the employer enforcing it usually must provide separate evidence to prove the reasonableness unless it is specifically deemed reasonable by law.
Agreements that limit future employment for one year or less and generally automatically reasonable. Those that are between one and two years after employment are usually enforced. Agreements that go beyond two years after employment are subject to review by our Courts. That is not to say an employer can’t have a five-year non-compete, it is just that there has to be a legally valid reason to impose 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 breaches the agreement the employer is not getting the full benefit of the limitation during the breach so while that is ongoing, the limitations are usually suspended until the breach stops. Then the non-compete restarts from that point until runs its course.
What you can and can not do depends on the agreement you signed and the particular circumstances. Non-compete agreements may also be married with non-disclosure and non-solicitation agreements that will also restrict use of knowledge gained during employment. Non-disclosure and non-solicitation agreements are not subject to the same limitations as non-competes and are often much broader as they are designed to protect proprietary information of the business.
The best thing to do is consult with a Board Certified expert in business litigation or labor and employment law before you, as the employee, undertake actions that may subject you to liability or before you, as the employer, hand a non-compete or non-disclosure to an employee to sign. You can easily find these experts through the Florida Bar or local Bar Associations like the Palm Beach County Bar.
As an employer, if you suspect that a former employee subject to either a non-compete, non-solicitation, or non-disclosure, is violating the agreement, the best initial action is to consult with a Board Certified expert in business litigation or labor and employment law. You need to know your rights and how the legal process enforces these agreements.
What you do not want to do is draft these important documents on your own only to find out later that they are unenforceable allowing your former employee to freely compete with your business armed with the knowledge and experience that your business gave them. Be smart, plan ahead, and consult with a Florida Bar Board Certified expert in business litigation.