Non-competition in Florida

26 authorities

• statuteFla. Stat. § 542.335enactment date not established
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  (1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought. (b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:1. Trade secrets, as defined in s. 688.002(4). 2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets. 3. Substantial relationships with specific prospective or existing customers, patients, or clients. 4. Customer, patient, or client goodwill associated with:a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”; b. A specific geographic location; or c. A specific marketing or trade area. 5. Extraordinary or specialized training. Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

• statuteFla. Stat. § 542.335enactment date not established
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  (c) A person seeking enforcement of a restrictive covenant also shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction. If a person seeking enforcement of the restrictive covenant establishes prima facie that the restraint is reasonably necessary, the person opposing enforcement has the burden of establishing that the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests. If a contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.

• statuteFla. Stat. § 542.335enactment date not established
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  (d) In determining the reasonableness in time of a postterm restrictive covenant not predicated upon the protection of trade secrets, a court shall apply the following rebuttable presumptions:1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of:a. The assets of a business or professional practice, or b. The shares of a corporation, or c. A partnership interest, or d. A limited liability company membership, or e. An equity interest, of any other type, in a business or professional practice, a court shall presume reasonable in time any restraint 6 months or less in duration and shall presume unreasonable in time any restraint more than 2 years in duration.

• statuteFla. Stat. § 542.335enactment date not established
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  2. In the case of a restrictive covenant sought to be enforced against a former distributor, dealer, franchisee, or licensee of a trademark or service mark and not associated with the sale of all or a part of:a. The assets of a business or professional practice, or b. The shares of a corporation, or c. A partnership interest, or d. A limited liability company membership, or e. An equity interest, of any other type, in a business or professional practice, a court shall presume reasonable in time any restraint 1 year or less in duration and shall presume unreasonable in time any restraint more than 3 years in duration. 3. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of:a. The assets of a business or professional practice, or b. The shares of a corporation, or c. A partnership interest, or d. A limited liability company membership, or e. An equity interest, of any other type, in a business or professional practice, a court shall presume reasonable in time any restraint 3 years or less in duration and shall presume unreasonable in time any restraint more than 7 years in duration.

• statuteFla. Stat. § 542.335enactment date not established
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  (e) In determining the reasonableness in time of a postterm restrictive covenant predicated upon the protection of trade secrets, a court shall presume reasonable in time any restraint of 5 years or less and shall presume unreasonable in time any restraint of more than 10 years. All such presumptions shall be rebuttable presumptions.

• statuteFla. Stat. § 542.335enactment date not established
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  (g) In determining the enforceability of a restrictive covenant, a court:1. Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought. 2. May consider as a defense the fact that the person seeking enforcement no longer continues in business in the area or line of business that is the subject of the action to enforce the restrictive covenant only if such discontinuance of business is not the result of a violation of the restriction. 3. Shall consider all other pertinent legal and equitable defenses. 4. Shall consider the effect of enforcement upon the public health, safety, and welfare.

• statuteFla. Stat. § 542.335enactment date not established
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  (h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

• statuteFla. Stat. § 542.335enactment date not established
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  (i) No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.

• statuteFla. Stat. § 542.335enactment date not established
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  (j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant. No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond, and the court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.

• statuteFla. Stat. § 542.335enactment date not established
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  (2) Nothing in this section shall be construed or interpreted to legalize or make enforceable any restraint of trade or commerce otherwise illegal or unenforceable under the laws of the United States or of this state. (3) This act shall apply prospectively, and it shall not apply in actions determining the enforceability of restrictive covenants entered into before July 1, 1996.

• case226 So. 3d 774White v. Mederi Caretenders Visiting Services of Southeast Florida, LLCFla.decided 2017-09-14read it at the source ↗
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  The issue presented is whether home health service referral sources can be a protected legitimate business interest under section 542.335, Florida Statutes (2016).1 For the reasons that follow, we approve the decision in White, quash the decision in Hiles, and hold that home health service referral sources can be a protected legitimate business interest under the statute.

• case226 So. 3d 774White v. Mederi Caretenders Visiting Services of Southeast Florida, LLCFla.decided 2017-09-14read it at the source ↗
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  For the foregoing reasons, we conclude that section 542.335(1)(b)3. does not preclude recognizing referral sources as protected legitimate business interests.

• case226 So. 3d 774White v. Mederi Caretenders Visiting Services of Southeast Florida, LLCFla.decided 2017-09-14read it at the source ↗
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  For instance, an interest in referral sources for specialist physicians may be a legitimate business interest, thus capable of protection in some circumstances and unprotected in others.4 Therefore, we approve the decision in White, in which the Fourth District relied on the reasoning of its earlier decision in Infinity Home.

• case226 So. 3d 774White v. Mederi Caretenders Visiting Services of Southeast Florida, LLCFla.decided 2017-09-14read it at the source ↗
  The words that state the rule

  Accordingly, we hold that section 542.335, Florida Statutes, is non- exhaustive and does not preclude the protection of referral sources; hence, home health service referrals may be a protected legitimate business interests depending on the context and proof adduced. As a result, we approve the decision in White and quash the decision in Hiles. Finally, we remand to the district court with instructions to further remand to the appropriate trial court for any necessary further proceedings consistent with this opinion. It is so ordered. LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

• statuteFla. Stat. § 542.43enactment date not established
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  (1) “Annual mean wage of employees in Florida” or “annual mean wage” means the most recent annual mean wage as calculated by the United States Department of Labor, Bureau of Labor Statistics, or its successor calculation, for all occupations in this state.

• statuteFla. Stat. § 542.43enactment date not established
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  (3) “Covered employee” means an employee or individual contractor who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of the county in this state in which the covered employer has its principal place of business, or the county in this state in which the employee resides if the covered employer’s principal place of business is not in this state. The term does not include a person classified as a health care practitioner as defined in s. 456.001.

• statuteFla. Stat. § 542.43enactment date not established
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  (10) “Salary” means the base compensation, calculated on an annualized basis, which a covered employer pays a covered employee, including a base wage, a salary, a professional fee, or other compensation for personal services, and the fair market value of any benefit other than cash. Salary does not include health care benefits, severance pay, retirement benefits, expense reimbursement, distribution of earnings and profits not included as compensation for personal services, discretionary incentives or awards, or anticipated but indeterminable compensation, including tips, bonuses, or commissions.

• statuteFla. Stat. § 542.43enactment date not established
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  (5) “Covered garden leave agreement” means a written agreement, or part of a written agreement, between a covered employee and covered employer in which:(a) The covered employee and covered employer agree to up to, but no more than, 4 years of advance, express notice before terminating the employment or contractor relationship; (b) The covered employee agrees not to resign before the end of such notice period; and (c) The covered employer agrees to retain the covered employee for the duration of such notice period and to continue paying the covered employee the same salary and providing the same benefits that the covered employee received from the covered employer in the last month before the commencement of the notice period.

• statuteFla. Stat. § 542.43enactment date not established
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  (6) “Covered noncompete agreement” means a written agreement, or a portion of a written agreement, between a covered employee and a covered employer in which, for a period not to exceed 4 years and within the geographic area defined in the agreement, the covered employee agrees not to assume a role with or for another business, entity, or individual:(a) In which the covered employee would provide services similar to the services provided to the covered employer during the 3 years preceding the noncompete period; or (b) In which it is reasonably likely the covered employee would use the confidential information or customer relationships of the covered employer.

• statuteFla. Stat. § 542.45enactment date not established
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  (1) APPLICABILITY.—This section applies to:(a) A covered noncompete agreement with a covered employee who maintains a primary place of work in this state, regardless of any applicable choice of law provisions; or (b) A covered noncompete agreement with a covered employer whose principal place of business is in this state and which agreement is expressly governed by the laws of this state. In either case, if any provision of this section is in conflict with any other law, the provisions of this section govern.

• statuteFla. Stat. § 542.45enactment date not established
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  (2) RESTRAINT OF TRADE.—A covered noncompete agreement does not violate public policy as a restraint of trade, as described in s. 542.18, or an attempt to monopolize trade or commerce in this state, as described in s. 542.19, and is fully enforceable according to its terms, provided that:(a) A covered employee was advised, in writing, of the right to seek counsel before execution of the covered noncompete agreement and was provided notice as described in subsection (3); (b) A covered employee acknowledges, in writing, that in the course of his or her employment, the covered employee will receive confidential information or customer relationships; and (c) A covered noncompete agreement provides that the noncompete period is reduced day-for-day by any nonworking portion of the notice period, pursuant to a covered garden leave agreement between the covered employee and the covered employer, if applicable. (3) NOTICE.—A covered employer must provide a proposed covered noncompete agreement to:(a) A prospective covered employee at least 7 days before an offer of employment expires; or (b) A current covered employee at least 7 days before the date that an offer to enter into a covered noncompete agreement expires. (4) OTHER AGREEMENTS.—This section does not affect or limit the enforceability of any other employment agreement or any other agreement.

• statuteFla. Stat. § 542.45enactment date not established
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  (5) BREACH OF COVERED NONCOMPETE AGREEMENT; REMEDIES.—(a) Upon application by a covered employer seeking enforcement of a covered noncompete agreement, a court must preliminarily enjoin a covered employee from providing services to any business, entity, or individual other than the covered employer during the noncompete period. The court may modify or dissolve the injunction only if the covered employee establishes by clear and convincing evidence, based on nonconfidential information, that:1. The covered employee will not perform, during the noncompete period, any work similar to the services provided to the covered employer during the 3-year period preceding the commencement of the noncompete period, or use confidential information or customer relationships of the covered employer; 2. The covered employer has failed to pay or provide the consideration provided for in the covered noncompete agreement and has had a reasonable opportunity to cure the failure; or 3. The business, entity, or individual seeking to employ or engage the covered employee is not engaged in, and is not planning or preparing to engage in during the noncompete period, business activity similar to that engaged in by the covered employer in the geographic area specified in the noncompete agreement.

• statuteFla. Stat. § 542.45enactment date not established
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  (b) Upon application by a covered employer seeking enforcement of a covered noncompete agreement, a court must preliminarily enjoin a business, an entity, or an individual from engaging a covered employee during the covered employee’s noncompete period. The court may modify or dissolve the injunction only if the business, entity, or individual establishes by clear and convincing evidence, based on nonconfidential information, that:1. The covered employee will not provide any services similar to the services provided to the covered employer during the 3-year period preceding the commencement of the noncompete period, or use confidential information or customer relationships of the covered employer; or 2. The business or individual seeking to employ or engage the covered employee is not engaged in, and is not planning or preparing to engage in during the noncompete period, business activity similar to that engaged in by the covered employer in the geographic area specified in the noncompete agreement.

• statuteFla. Stat. § 542.45enactment date not established
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  Any information filed with the court which the covered employer deems to be confidential must be filed under seal to protect confidentiality or avoid substantial injury. A court must presume that an employee or individual contractor has access to confidential information or customer relationships if the employee or individual contractor acknowledges the access or receipt of such access in writing.

• statuteFla. Stat. § 542.45enactment date not established
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  (c) The injunctive relief provided in this section is not an exclusive remedy, and a prevailing covered employer is entitled to recover all available monetary damages for all available claims. (d) In any action to enforce this section, the prevailing party is entitled to reasonable attorney fees and costs. (e) If the covered employee engages in gross misconduct against the covered employer, the covered employer may reduce the salary or benefits of the covered employee or take other appropriate action during the noncompete period, which reduction or other action may not be considered a breach of the covered noncompete agreement. Any action regarding a restrictive covenant that does not meet the definition of a covered garden leave agreement or a covered noncompete agreement as provided in this part is governed by s. 542.335.

• statuteFla. Stat. § 542.41enactment date not established
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  542.41 Short title.—This part may be cited as the “Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act.”