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How to Compete with a Non-Compete Agreement

Clarifying Non-Compete Provisions and How They Affect You

Often when entering into employment with a company, you will be asked to sign an employment contract or agreement. Inside that agreement are a variety of different covenants or promises that both you and your company are making with each other: agreements on pay, vacation time, benefits, and what your structure of duties will be, etc. In addition to those usual boilerplate sections, an additional obligation a company may place upon you is a Non-Compete Provision.

What is a non-compete provision?

A non-compete provision is an agreement that after an employee’s tenure with the company has ended, either by termination, resignation, or layoff, that the employee will not work for a competitor in the same field or geographic area as the employee’s previous employer for a set period of time.

What is the purpose of a non-compete?

A non-compete provision is legal in Florida as a measure of protecting the company’s legitimate business interests if the employee leaves the company’s employment and works for a rival entity. The biggest sticking points for an employee when concerning non-compete agreements occur when the employee is about to leave the company with the non-compete provision in place to join a new employer.

What exactly can an employer make me agree to in a non-complete clause?

While it is legal for an employer to request that an employee not work for competitors due to legitimate business reasons, such as that employee’s access to confidential information or the relative uniqueness of the field which that employer operates in, there are some limits to what an employee can be obligated.

According to Florida case law, any non-compete provision which mandates that an employee is barred from working within a 100-mile radius of their previous employer, or which requires a 2-year cooling off period before returning to work in that field, is unenforceable unless the employer can show that it has a legitimate business interest it is attempting to protect.

One of the few examples in which geographic radiuses for non-competes can exceed 100 miles is for agreements with employees in sales positions, as those employees’ sales areas often far exceed the geographic bounds of the state of Florida. If a court sees this type of excessive provision, it will not invalidate your entire employment agreement, but the court may strike the provision while maintaining the legal enforceability of the remainder of the agreement.

[Click here to learn more about non-compete geographical radiuses in a virtual world.]

Can I break a non-compete?

Before you set off on breaking your non-compete, be mindful of a few factors. The employment agreement you signed, as long as you signed it while you were of sound mind and were not under duress at the time, is a valid contract. Therefore, any attempt you make to violate the terms of your agreement, including attempting to break your non-compete, could be seen as a breach of contract.

In addition, many employment agreements carry with them significant damages, called liquidate damages, if you breach the contract; these liquidated damages are damages that you and the company have agreed are readily foreseeable in the event of a breach of the agreement. Keep in mind that even if you reasonably believe that your non-compete provision is invalid, the company may still attempt to litigate the enforceability of that provision, and you may incur significant court costs and expenses defending yourself.

Are there any ways to get out of a non-compete in Florida?

If the non-compete is valid and enforceable based upon time and distance, there are only a couple further ways of getting out of it. If your employer breaches the agreement in some fashion, either by not paying you the correct wages, or reneging on covenants to provide certain benefits, you may have grounds to defeat your non-compete agreement. If the company you work for is planning to lay you off and is offering you a severance package, you may be able to negotiate a release of your non-compete agreement if you agree to sign a release and waiver of claims against your former employer.

It’s also worth mentioning that non-competes will not usually be enforceable against doctors, nurses, or other professions that operate in areas of public health or science, as an employer can not prevent you from working in fields which provide great public benefit to the community.

Do I have to tell my future employer I signed a non-compete in the past?

If an attorney has reviewed your prior employment agreement and finds that the non-compete provision is likely to be held as valid by a court of law, you have a duty in Florida to inform your future employer that the provision may still be in place. This is necessary as that successive employer must be able to get an independent legal opinion on whether they are at risk to be sued by your original company as a third party interferer.

Hire a Competent Non-Compete Provision Lawyer in Florida

A non-compete agreement is no laughing matter. In order to protect your rights, it is essential that you have a competent experienced employment attorney from the Dolman Law Group review your non-compete agreement and determine whether or not you have legal exposure in this rapidly expanding area of law.

For a free consultation regarding your non-compete clause situation, you can contact us online or call (727) 451-6900

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Florida Employment Law Attorneys

Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765
(727) 451-6900