How does a non-compete affect me if I leave or lose my job?
Under Florida law, non-compete agreements are considered trade restraints and are construed strictly in accordance with our Bylaws. Non-compete agreements must have supportive consideration and must be reasonable in their geographic scope and time frame.
Consideration
The consideration for a non-compete can be the job, if it was entered at the start of the job, otherwise they generally must 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 to be protected. When I draft a non-compete agreement for a business client, I generally include factual explanations of the rationale for these limitations to guide a court later and enhance the enforceability of the document.
How does your non-competition affect you?
So if you have a non-compete agreement and you 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 contract of employment and the employer breached that contract, the non-competition attached to it may not be enforceable. However, if there was no such agreement and waiver, then the non-compete may be enforceable as long as it has the required consideration and its limitations are reasonable.
How non-compete agreements are enforced
Whether the limitations in a non-compete are reasonable is generally a factual determination for a judge. For this reason, the non-competition agreements drawn up by the author have the agreed facts incorporated in the document. Without that, the enforcing employer generally must provide separate evidence to prove reasonableness unless the law specifically deems it reasonable.
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 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 found that if a party subject to a valid noncompete agreement breaches the agreement, the employer does not get the full benefit of the limitation during the breach, so while it continues, the limitations are generally suspended until non-compliance ceases. . Then the non-compete 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 acquired 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 company proprietary information.
Resume
The best thing you can do is consult with a Board Certified expert in business litigation or labor and employment law before you, as an employee, take any action that may expose you to liability or before you, as an employer, enter into an employment agreement. no competition or not. -disclosure to an employee to sign. You can easily find these experts through the Florida Bar or local bar associations, such as the Palm Beach County Bar Association.
As an employer, if you suspect that a former employee subject to a non-competition, non-solicitation, or non-disclosure agreement is in violation of the agreement, the best initial course of action is to consult with a Board Certified expert in business or employment litigation. and labor law. 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 are unenforceable, allowing your ex-employee to freely compete with your company armed with the knowledge and experience your company provided them. . Be smart, plan ahead, and consult with a Florida Board Certified business litigation expert.
