Legally Enforceable?
Yes, a non-compete is legally enforceable if it is in writing and proves there is a legitimate business interest defined as:[2]
- Trade secrets. Trade secrets, as defined in § 688.002(4).
- Confidential information. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
- Relationships. Substantial relationships with specific prospective or existing customers, patients, or clients.
- Goodwill. Customer, patient, or client goodwill associated with:
- An ongoing business or professional practice, by way of trade name, trademark, service mark, or “trade dress”;
- A specific geographic location; or
- A specific marketing or trade area.
- Specialized training. Extraordinary or specialized training.
A non-compete may only be written if the recipient would carry an “unfair advantage” by working in a similar or same business. As presented in Passalacqua v. Naviant (2003), it was stated that:
“There must be special facts present over and above ordinary competition.”
Therefore, a non-compete cannot be written to solely exclude a new competitor from entering the market.
A licensed attorney is not allowed to participate in a non-compete that restricts their rights to practice law in the State.[3]
Continued Employment?
Blue Penciling Allowed
Florida allows blue-penciling for a non-compete that “is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest… a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.”The person being restrained by the non-compete is responsible for proving that the agreement is overbroad.[8]
Getting Out of a Non-Compete
If a person is restricted by a non-compete, Florida law allows for certain hardships to get out of a non-compete.
- Business no longer operates in the jurisdiction that non-compete covers;
- All pertinent legal and equitable defenses; and
- The effect of enforcement upon public health, safety, and welfare.
- The economic effect the non-compete has on the individual.[9]