I signed a non-compete. The employer never notarized it, signed it and didn't give me a copy. Can he enforce the agreement?
3 attorney answers
There is no statutory or common law requirement that a non-compete agreement be notarized. To be enforceable, though, it has to be signed by the party against whom enforcement is sought. § 542.335(1)(a). (It probably does not even need to be signed by the employer either.) Additionally, the fact that the employer did not provide you with the agreement does not make it any less enforceable. However, if the employer does seek to enforce the agreement, it will have to be attached to the complaint.
Without knowing the substance of the non-compete agreement, it will be virtually impossible to provide any legal advice about its enforceability. Given that non-compete issues can spiral out of control (e.g., former employer contacting new employer demanding that you be fired, threatening litigation, etc.), it would behoove the questioner to contact an attorney as soon as possible considering the impact it might have on the ability to get a job.
Independent of the above, you may have defenses to the non-compete agreement and the employer may have difficulty proving a legitimate business interest. For these reasons, alone, the questioner should contact an attorney as soon as possible.
The foregoing answer is for informational purposes only and does not create an attorney-client relationship. The person submitting the question is encouraged to hire an attorney to obtain a formal legal opinion.
Notarization of a contract is never required to make it enforceable, unless of course both parties agree in writing that it is.
The bottom-line is that your agreement will need to be reviewed so a lawyer can determine whether it seems enforceable or not. Remember, litigation is expensive and in the vast majority of cases employers will not sue over these kind of non-competes because any award they may receive from the court will not be worth the costs. Further, courts are extremely reluctant to enforce agreements that impede upon a person's ability to make a living. In CA for example this agreement would not be enforced. In FL they may be, but they are required to be reasonable in both geographic scope and duration. I will link you to a brief overview on this topic below. Lastly, even if it is unlikely that a court will enforce it (a conclusion we cannot make here) it would stop your employer from filing the complaint and forcing you to respond. Some employers are very litigious.
There is also a concept known as a strategic breach. Basically, if your opportunity far exceeds any penalty you will face by breaching it makes sense to just breach and if you are sued deal with it then. Remember, breaching this private agreement is not a crime it can only be enforced civilly.
Please consult a lawyer in private. Most of us here, including myself, offer a free phone consult.
The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. 866-871-8655 [email protected] DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.
If the agreement has been signed it may be enforceable as long as the non-compete is reasonably limited in time and scope and does not preclude you from earning a living. The employment agreement must be examined to see what it provides for termination with and without cause. Whether or not it was notarized is irrelevant so long as the signatures are authentic. Florida is one of those states that enforces reasonable covenants not to compete. You need counsel to examine your contract and help you decide how best to proceed. Let me know if you would like my assistance.