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Reasonable and Effective Non-Compete Clauses from the Employer’s Perspective
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Reasonable and Effective Non-Compete Clauses from the Employer’s Perspective

July 14, 2010 Professional Services Industry Legal Blog

Reading Time: 5 minutes

Specially trained employees are a valuable commodity in the business world, so keeping these skilled employees is of the utmost importance to employers. Many people have a skewed perspective of non-compete clauses as being manifestly unjust to the employee against whom it is being enforced. To address this sentiment, the Florida legislature has crafted, Fla. Stat. §542.335 in such a way that it ensures fairness to both the employee and the employer.On the one hand, employers have a right to mandate these restrictive covenants because they are entitled to reasonably protect their legitimate business interests and prevent unfair competition from former employees. On the other hand, employees agree to the covenant because in all likelihood they will be receiving a good job that will lend experience and knowledge of important business information and possibly trade secrets. With this employment usually comes exposure to proprietary or confidential information through business operations or specialized training. Protection of confidential client lists is the most frequent reason employers engage our firm for enforcement of non-compete contracts. Covenants not to compete should be viewed as reasonable because they are bound by the same rules as all other contracts. Pursuant to the Statute of Frauds, it must be signed by the person against whom it will be enforced. Also, it must have several restrictions to ensure it is not overbroad, or too burdensome. These restrictions include reasonability in the length of time, the geographical area, and type of business venture.According to Fla. Stat. §542.335, a reasonable length of time can range from 6 months to less than 2 years before becoming overly burdensome. The geographical limitation is subjective and based on the location and type of business the employer is conducting. For example, if the employer has a statewide business, it seems presumptively rational to allow the clause to extend to the entire state, but no further. If the company conducts business nationwide, the clause may be able to extend throughout the nation. Finally, the business field that is restricted in the covenant must be the exact field, in which the employer conducts business. All these factors are balanced and weighed with the public interest with the judicial perspective of deference so long as the covenant is reasonable.

Next, the most important element of a non-compete clause is the employer proving the existence of at least one or more legitimate business interests. These legitimate business interests could include:

• trade secrets
• valuable confidential business information
• customer goodwill
• specialized training
• substantial relationships with prospective or existing customers, patients or clients.

In order to prove such an interest exists and is the actual basis for the contract, it should be written in the covenant to ensure there is a basis for enforcement and the rationale is clear. Generally, the higher up the employee is in the corporate structure the more likely the employee will be exposed to confidential information, and the more likely courts are to enforce the covenant. However, if the important interest is written into the contract and can be definitively proven, it will most likely be upheld even against rank-and-file employees.It should be understood by every employer that all standard legal and equitable defenses apply to non-compete clauses as with any other contract. However, the court may not consider economic or other hardship caused by enforcement of the non-compete clause. In order to ensure that defenses to the covenant are minimal, every employer should enforce the covenant uniformly on every employee. These clauses cannot be selectively enforced to be considered valid. Also, the employer must not materially breach any other terms of the contract, which could invalidate the entire contract. Conversely, the employer should include in the non-compete a provision stating that if the employee should materially breach the contract, then injunctive relief should be granted. In order to maximize the effectiveness of the clause, it should include a provision stating that an employee cannot work for a company that has any division or affiliate that competes with the employers’ company. Furthermore, it should include a provision that states if a termination of an employee is done in good faith by the employer then the contract is still enforceable on the date of termination.

If an employer follows the guidelines set forth, the non-compete clause should be enforceable. Once the employer establishes that the covenant is reasonable and follows all the statutory procedures, the burden then shifts to the employee to prove that the restraint is overbroad, overlong, or not reasonably related to protecting a legitimate business interest. In the event that a non-compete is found to be unreasonable, the court will most likely modify the agreement to make it reasonable as opposed to invalidating the entire clause. However, this should be avoided, if possible, because the courts will most likely draft a provision that affords the employer with less protection if the employer tried to enforce a clause that is per se unreasonable. The best approach is to draft a non-compete clause that is reasonable on the front end to avoid being judicially mandated to enforce a clause that provides the company with less safeguards. If an employer does not feel comfortable mandating a non-compete clause to every employee, it is highly suggested that the employer at least require a non-solicitation clause. This agreement prevents an employee that leaves the company from taking the best remaining employees, and customers, thus limiting “corporate raiding.”

Sources reference: Fla. Stat. §542.335; NON-COMPETE AGREEMENTS: EMERGING ISSUES FROM THE PERSPECTIVE OF EMPLOYEE’S COUNSEL Wayne N. Outten, Anne Golden , Nantiya Ruan

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