
Non-solicitation and non-competition agreements offer valuable protection to employers to help ensure former employees do not use information they gained from the employer to benefit a competitor. However, since they potentially limit employment opportunities for employees, there are stringent requirements that must be met to be considered valid in Florida. You should always consult an attorney to determine whether your non-solicitation or non-competition agreement is enforceable in Florida before you give it to employees or you sign one as an employee.
A non-compete prohibits an employee from working for a competitor or starting a competitive business for some period of time and within a certain geographic area after employment ceases. Typically, they are used for employees who have access to confidential or proprietary information about the employer’s business or have unique skills, but some employers may use them more broadly.
In Florida, agreements must be in writing and signed by the person against whom enforcement is sought. In addition, the party seeking enforcement must prove that the provision is:
Where a non-compete is overly broad, Florida courts take a “Blue Pencil” approach meaning they revise the provision to make it reasonable and enforceable. For example, the court may limit the duration or geographic area covered by the non-compete, rather than state that the agreement is unenforceable.
A non-solicitation agreement prevents an employee from soliciting customers or suppliers of the former employer. Its purpose is to limit the employee from using information garnered during employment to lure customers away and unfairly compete with the former employer. Often, they are used for employees in sales, account management, or executive roles.
As with non-competes, non-solicitation agreements must be in writing and signed by the party against whom it is being enforced. The agreement must also be necessary to protect a legitimate interest of the employer and reasonable in duration and scope. For example, an agreement limited to solicitation of the former employer’s prospective or existing customers with whom the former employee dealt or about whom the former employee obtained confidential information would be reasonable in scope.
Unlike non-competes, a reasonable geographical limitation is not necessary for non-solicitation agreements.
Enforceability of non-competes and non-solicitation agreements are determined by courts by looking at the particular facts and circumstances. As such, it is important to get good legal representation. However, employers should be proactive and have an experienced attorney draft an agreement that is narrowly tailored to the specific needs of the business to help ensure that it is enforceable. Further, employers must take care to provide such agreements to those employees who are likely to have information that may be used against the employer rather than giving them to every employee.
Contact an experienced employment attorney for assistance with your non-compete or non-solicitation agreement.