Non-Compete Agreements

To contact Donna Ballman regarding a news story or speaking engagement about noncompete agreements, nonsolicitation agreements, NDAs, or an employment agreement lawsuit, email her at ballmand@ballmanfirm.com. Donna Ballman is not accepting new employment law matters at this time.

While Florida courts may enforce noncompete contracts, enforceability is subject to numerous defenses. Non-competes that overreach their geographical boundaries or have restrictions beyond what the employer's business actually does are typically not reasonable and therefore not enforceable. Employers must demonstrate a legitimate interest to protect if they want to impose a noncompete agreement. Simply preventing competition is not a legitimate interest, and may be an antitrust violation. Preventing use of trade secrets, goodwill associated with a particular geographic reason, and specialized training may be legitimate reasons. However many employers overreach. Employers must abide by the specific requirements of the contract in order to enforce it.

Employer obligations under non-competition agreements that must be fulfilled include things such as paying all salary and benefits at the level specified, and paying severance or giving notice if required by the contract. If requirements such as these are not fulfilled, the employer may not be able to enforce the contract. Employment attorneys can provide advice on overcoming a non-compete contract that is not enforceable.

If your employer demonstrates a lack of good faith by engaging in fraud, discrimination, whistleblower retaliation or breach of contract, you may have defenses to enforcement of your non-compete agreement.

If you are an executive, manager, physician or employee seeking more information about overcoming, defeating, or defending against Florida non-compete agreements, read Donna Ballman's article about how to overcome non-compete agreements.

To locate an employee-side employment attorney, go to http://exchange.nela.org/findalawyer.

A non-solicitation agreement is one that says you may not solicit customers of the employer after you leave. After meeting their obligations under a contract's terms and conditions, employers must demonstrate a legitimate business reason to institute enforcement proceedings for a non-solicitation contract.

The state of Florida defines legitimate business interests for which a non-solicitation agreement or non-compete agreement can be enforced as the following:

• Protecting trade secrets
• Maintaining valuable confidential business or professional information
• Preserving relationships with specific prospective or existing customers, patients, or clients
• Defending goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location, or marketing/trade area
• Maximizing investment in extraordinary or specialized training

An employee-side employment attorney can advise clients on these requirements and how employers must comply with them. To locate an employee-side employment attorney, go to http://exchange.nela.org/findalawyer.

An employment lawyer might want to consider other issues related to enforcing non-competition contracts. These can include things such as the age of the contract, whether or not the information held by the employee is actually readily available elsewhere, or whether the public interest would be served by enforcing a non-compete agreement.

A trade secret is basically information that would have a financial value to a competitor. Confidential information is that information the employer keeps confidential. If the information is available through public sources, such as the company website, trade publications or directories, then it is neither a trade secret nor confidential.

Many employers attempt to claim employees stole trade secrets or confidential information when they leave. While trade secrets are protected whether or not you have a trade secret agreement, other confidential information is not protected unless you signed a confidentiality contract. Employers who try to claim they own customer lists may be overreaching if they obtained customers and leads through public sources.

If you have been sued or threatened by an employer or former employer over trade secrets, a confidentiality agreement, a non-compete agreement, or a non-solicitation contract, it is important you obtain experienced help right away. If you do not defend yourself, you may have a judgment entered against you, a court order prohibiting you from working in your field, and may even lose your job if they sue or threaten to sue your new employer.

To locate an employee-side employment attorney, go to http://exchange.nela.org/findalawyer.