Payton & Associates, LLC
Commercial Litigation Attorneys
Miami, Florida

Process for determining enforcement of a non-compete agreement

When companies in Florida are hiring new employees there are many different considerations that go into the decision about who to hire for the job. First they need to determine the work that is required and budget considerations for salaries. Then they need to go through the process of picking the best candidate for the position. After the person is chosen, the company then needs to ensure the new employee understands the benefit packages available and the new employee will likely need to sign employment contracts to define the scope of employment and other covenants that both parties must follow.

One of the covenants that many employers want their employees to agree to when they hire them is non-compete agreements and other restrictive covenants. These are to ensure that employees will not learn valuable information about the company and then move to a competitor and reveal what they have learned. When drafting these covenants, the employer must ensure that they are reasonable to protect business interests and must be reasonably limited in the length and area it restricts, which could be either geographical or a specific type of business.

If an employee does begin working for a competitor and violates the covenant, then the employer can seek an injunction to prevent the employee from working for the competitor. In order to be successful the employer must first establish a prima facie showing that the employee violated the agreement and that it was valid. If they can do that, the burden then shifts to the employee to establish that the non-compete was overly broad, lasted too long or was not reasonably necessary to protect a legitimate business interest. If the employee is successful, the court then must modify the covenant to include only necessary protections.

It has become fairly common practice for employers to require their employees to sign non-compete agreements as a condition of employment. It is important that these are drafted correctly, so that if they are required to enforce them later on, a court will uphold them. Unfortunately sometimes the company may only realize that the non-compete is poorly drafted after a court rules against them. Experienced attorneys understand the importance of these and may be a useful resource.

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