Florida Estate Planning Lawyer Blog

After quitting or being terminated, your employer will tell you that you are bound by your non-compete agreement. The reality is that even if the agreement is invalid, most employees don’t have the will or the resources to fight a non-compete or non-solicitation agreement. Many employees think that, just because an employer forced them to sign the agreement or be fired, that they are not bound by a non-compete agreement. That’s just not true.

Continued employment is valid consideration for a non-compete agreement in Florida. Florida statutes presume that non-compete agreements are valid. That doesn’t mean you can’t get out of yours if you’re willing to fight.

What usually happens is the employer sends a letter to the employee and the new employer, threatens to sue both, and the employee gets fired from their new job, even where they told the new employer about the non-compete. That’s because, unless you have a contract with the new employer spelling out that you can only be fired for cause, and that the non-compete is known to the employer and is not cause, Florida is an at-will state. That means any employer can fire any employee for any reason or no reason at all.

Smart employees consult a Employment Lawyer before signing a non-compete to be advised of their rights. Even if you signed without getting advice, you still may have some legal arguments to defeat your Florida non-compete.

1. Employer breaches the contract: If your employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, it is important to have an attorney go through the contract line-by-line. If the employer breached the agreement by failing to pay all compensation due, failing to fulfill the insurance requirements, or failing to meet some other obligation, the employee can be relieved of all obligations under the contract.

2. No legitimate interest to enforce: Many employers attempt to overreach their legitimate business interests, and this is one of the most common mistakes. For instance, an employer has no legitimate interest in enforcing a non-compete against low-level employees such as receptionists and clerical employees. An employer who manufactures computer software for accountants has no legitimate interest in preventing an employee from working on software for doctors. An employer who is phasing out of an area has no legitimate interest in preventing an employee from working in that area. An employer who abandons a particular customer, area of business, or product has no legitimate interest in the area it abandoned. The statute allowing non-compete agreements assumes that the following are legitimate business interests:

a. Trade secrets;
b. Valuable confidential business or professional information;
c. Substantial relationships with specific prospective or existing customers, patients, or clients;
d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;
e. Extraordinary or specialized training

3. Agreement is for too long a time period: For employees, a period of less than 6 months is presumed valid, and over 2 years is presumed invalid. In between, the employer will have to prove that the time period is reasonable. Most courts in Florida will assume that agreements up to 2 years are reasonable and narrow agreements for longer periods of times to be compliant with what is reasonable. But anything over 2 years is going to be a hurdle for the employer to overcome.

4. The confidential information is something readily available to the public: Many companies get their sales leads from public sources. Phone books, professional directories, the internet, notification services, are all sources that are available to anyone in the industry. So an employer who claims they are protecting their valuable secret client sources is going to have to show that the information was not available to everyone else in the industry. Existing customer lists or unique sources are protected, but chamber of commerce directories are not.

5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific and health areas. If there is a shortage of people in a particular specialty, or in a particular geographic area, then the employer cannot enforce a non-compete even if all the other requirements are met. If you are one of 10 brain surgeons in the country who can perform a particular procedure, your employer probably can’t prevent you from saving people’s lives.

I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. Even if they are not enforceable, many people do not have the financial resources to fight the enforcement. Florida Statutes allow individuals to recoup their legal fees and costs, but there is no guarantee that the judge will rule in their favor completely. An employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.

An employer who tries to enforce a non-compete and fails can end up paying the attorney’s fees and costs of the prevailing employee, and will sometimes be paying money damages to the employee for tortious interference with an employment relationship if they cost the employee a job.

If you’re leaving a job and you have a non-compete, the best thing to do is get advice from a Florida Employment Lawyer before you leave. A written agreement with the new employer to defend you and to pay you even if you can’t perform particular services if a court issues an injunction will protect you. If you get sued to enforce a non-compete, you MUST contact an employment attorney immediately to defend yourself or you will lose your new job, you will have a money judgment against you, and you will have no ability to raise any defenses to the non-compete agreement.

If you are be affected by this type of behavior or want to put policies in place in your business to help prevent these actions please contact a Jacksonville Employment Lawyer.

This is the third part to a series on Protecting the Company's Privilege and the dangers of Email. Click here if you missed Part 1 and Part 2. Many Jacksonville Business Lawyers tell their clients that email can be very dangerous in the event of litigation. One should always be careful before pressing the send button.

Some of the things you should implement in regards to email are:

1) Provide training to employees teach them what the proper steps are to prevent inadvertent disclosures, spoliation, and other risks from occurring.

2) Always separate business advise from legal advise, use lead ins to make it clear that what is being provided is legal advise.

3) Indicate in the communications when the communication is for legal purposes or in anticipation of litigation.

4) Limit the distribution of any disclosure to avoid waiver of privileges.

5) Teach and train that any disclosure, even an unintended one, can be a waiver of the privilege.

6) Create, implement, and audit your firms document retention policy.

If you have question on your Document retention policy or how your firm is using email on an internal and external basis, be sure to have a Florida Business Lawyer or Attorney review and audit your procedures.

This is the second part to a series on Protecting the Company's Privilege. If you missed Part 1 it can be found here. Many Jacksonville Business Lawyers tell their clients that Blackberry devices are invitations for disaster because clients have their guard down. In the past people communicated with a short phone call, in a hallway conversation, at the water cooler. Today in house council and employees often communicate with text messages and emails. Often they are giving business and legal advise to employees. Sometimes both business and legal advise is given in the same conversation.

Only legal advise is privileged and the privilege can be lost if business advise is intermingled with the legal advise. This privilege only protects communications within the United States. In house counsel should be cautious when communicating with employees or offices in other countries. Some countries do not recognize a privilege for in-house counsel.

Some countries like France and Switzerland recognize no privilege at all for in-house counsel and Japan is in between France and the United States.

How can in-house counsel protect their emails?

• Be conscious of when you are giving legal and business advise. Sometimes you may want to send two emails.
• When sending out legal advise make sure its clear that it is legal advise. Start your emails with "You have asked for my legal advise on this issue". Teach your staff not to mass forward your messages, if the message is forwarded to one person to many, the privilege can be lost.
• Educate your staff that email is not destroyed by simply pressing the delete key. Blackberry devices create inadvertent documentation in situations where clients have their guard down. Don't send an email that you would not like made public.
• Selectively use Privileged & Confidential" notations on e-mail communications. This will help in the event you have to argue the meaning in front of a judge.

Continued in Part 3

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

Davis v. Joyner, 409 So.2d 1193, 1195 (Fla. 4th DCA 1982).

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

Davis v. Joyner, 409 So.2d 1193, 1195 (Fla. 4th DCA 1982).

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.