Help with a Covenants not to compete.

Asked about 1 year ago - Orlando, FL

(a) Covenant: "xxxxxxxx" hereby covenants and agrees to not, directly or indirectly, actively or passively for "xxxxxxxxx" or any other person or entity for any reason:
(i) hire any present or former employees of employer (or any employer's affiliates) or become employed or engaged by "xxxxx"or any entity with which "xxxxx" is directly or indirectly related or in which "xxxxxx" has any interest;

That is the clause from my contract from many years ago. The only place a time frame is stated is in the noncompete clause for geographic location/radius.

If I quit my job and hire the assistants that will quit after I leave, (because they hate it there without me), will that clause be unrealistic to enforce? and what could it lead to? There are no trade secrets to worry about

Attorney answers (4)

  1. Brad Elliott Kelsky

    Contributor Level 6

    2

    Lawyers agree

    Answered . If this is a Florida issue, any analysis must involve a review of the agreement in relation to ยง 542.335, Fla. Stat.. The statute provides some guidelines and discusses presumptions for various types of restraints.

    It is extremely difficult to provide an answer without looking at the entire agreement and without discussing the facts and circumstances surrounding the reasons why you would leave the company. For example, one would need to know whether the employer breached the agreement and/or whether the non-compete is a "dependent" covenant or "independent" covenant. One would also need to examine the type of business you would be leaving and/or creating. One would also need to determine whether any other defenses exist so as to neutralize the non-compete. In other words, there are a lot of variables that must be examined.

    Please keep in mind that Florida courts have the power to reform these agreements to make them more reasonable if they are over-reaching.

    Again, this is a very broad question and one that requires a lot of factual analysis.

    I hope this helps.

    This response is for informational purposes only and does not establish any type of attorney-client relationship. The person submitting the question should contact an attorney, in a professional capacity, to discuss the matter further.

  2. Scott Douglas Knapp

    Contributor Level 7

    Answered . In order to be enforceable, the non-compete must be supported by the legitimate business interests of your current employer. I understand that you claim there are no "trade secrets." Often, lay person's understanding of what constitutes a trade secret or a legitimate business interest is different from what is legally accepted and enforceable. Even attorneys can often dispute whether there is a sufficient basis to enforce a non-compete agreement. Notwithstanding, the ultimate question will turn into how risk adverse you want to be. This is a truly a business decision in many ways. Even if ultimately you are correct, there is no one that can guarantee that your current employer will not bring a suit against you in order to try to enforce the non-compete agreement if you leave and try to work for a competitive business. Certainly having a review of your full agreement and discussing the facts with an attorney who has experience litigating restrictive covenants is advised. There are too many issues that can play into the enforceability, in addition to the existence of legitimate business interests, to discuss in a short response (i.e. whether your employer has let other employees compete without enforcing restrictive covenants, whether the geographic area and/or time are reasonable, whether your employer first breached the agreement).
    As stated above, it is not the number of years that have passed since you signed the agreement that matters. The time restriction only begins after you leave employment.
    The other important legal concern is a non-solicitation clause. Your statement above appears to restrict you from recruiting other co-workers to leave with you and/or join you at another business. Again, there are a myriad scenarios and facts to discuss whether this clause is enforceable.
    The only easy answer is if you do not want to be sued, and you still want to leave, do not go to work for a competitor and do not solicit or bring with you any of your current co-workers.
    Best of luck!

    DISCLAIMER: The above response and answer to your question should not be interpreted in any fashion to create an... more
  3. Jonathan Edgar Pollard

    Contributor Level 12

    Answered . This is a very nuanced question. Basically, we're dealing with an employee solicitation clause. My guess is that Florida courts would evaluate an employee non-solicitation clause using the same standard as a normal non-compete agreement. There would need to be a legitimate business interest, etc. It could go either way. If there really is no confidential information at issue, then that makes it less likely that such a non-solicitation provision would be enforced.

    For more about Florida non-compete agreements, please see www.floridanoncompetelawyers.com. Feel free to call my office if you need further assistance. I do a great deal of work in this area and would be happy to help.

    Best,

    Jonathan Pollard

    My response to this question is a response to a hypothetical situation based on limited facts. I am not your... more
  4. Pamela Koslyn

    Contributor Level 20

    1

    Lawyer agrees

    Answered . It doesn't matter how long ago you signed this contract, what matters is the time frame that starts after you quit.

    It looks like you can't hire anyone who works or worked at this employer once you leave, and doing this could very possibly get you sued. You'd have to defend yourself and argue that a "no hire" clause isn't enforceable and even if they claimed you solicited these employees, you didn't solicit any employees, they just quit on their own and applied to work with you.

    Realize that no lawyer can give you meaningful advice without having the opportunity to review the entire document and discuss the facts with you. See your own business/employment lawyer for help.

    Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to... more

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