Yes, the non compete clause is valid.
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His employer will say he is bound by his non-compete agreement. Most employees don’t have the will or resources to fight. Many think, if employers forced them to sign or fired them, they are not bound by a non-compete agreement. That’s not true. Florida statutes presume non-compete agreements are valid. That doesn’t mean you can’t get out of yours if you’re willing to fight.
Usually the employer sends a letter threatening to sue the employee and the new employer, and the employee gets fired from the new job, even if the new employer knew about the non-compete. Unless you have a contract with the new employer saying you can only be fired for cause, and that the non-compete with the former employer is not cause, Florida is an at-will state. That means an employer can fire you for any reason or no reason at all.
You should always, in the future, consult an attorney before signing a non-compete. If he signed without getting advice, he may still have some ways to defeat his non-compete.
1. Employer breaches the contract: If the employer put the non-compete provision in an employment contract spelling out compensation, insurance and other conditions of employment, your attorney should go through it line-by-line. If the employer breached the agreement by not paying all compensation and benefits due, or failing to meet some other obligation, the employee is relieved of the contract.
2. No interest to enforce: It is common for employers to overreach their legitimate business interests. An employer has no legitimate interest in enforcing a non-compete against receptionists and clerical employees. An employer who manufactures software for accountants has no interest in preventing an employee from working on software for doctors. An employer phasing out of an area has no interest in preventing an employee from working in that area. An employer who abandons a customer, area of business, or product has no interest in the area it abandoned. Legitimate interests include:
a. Trade secrets;
b. Valuable confidential business or professional information;
c. Substantial relationships with specific prospective or existing customers, patients, or clients;
d. Goodwill associated with an ongoing business or professional practice, by way of a trademark, geographic location or marketing/trade area;
e. Extraordinary or specialized training
3. Agreement is for too long: Less than 6 months is presumed valid, and over 2 years is presumed invalid. In between, the employer will have to prove that the time period is reasonable. Most courts will assume agreements up to 2 years are reasonable. There is a related statute finding 3 years reasonable when there is a former business owner selling a business.
4. The so-called confidential information is available to the public: Many companies get their leads from public sources. Phone books, the internet, notification services, are sources available to anyone in the industry. An employer will have to show the information was not available to everyone else in the industry. Customer lists or unique sources are protected, but chamber of commerce directories are not.
5. Public health or safety would not be served: This primarily applies to doctors, nurses, and people in specialized scientific/health areas.
I tell people to assume their non-compete agreements are enforceable, and not to sign them unless they can live with the restrictions. But an employee with the time, will, and resources to fight can frequently limit or eliminate their non-compete provisions.
An employer who loses a non-compete suit will pay the employee’s attorney’s fees and costs, and may be liable for tortious interference if they cost the employee a job.
I'd suggest you get advice from an employment attorney and have them review the contract. If you get sued, you MUST contact an employment attorney immediately to defend yourself.
One more area of inquiry regarding the validity of the noncompete is whether the length of time is reasonable under your specific facts, and whether the physical area to which the noncompete applies is reasonable. The most ridiculous (an unenfoceable) noncompete I ever saw was attempting to prohibit my client from working in any English speaking country the world for the next ten years. Have it reviewed by an attorney or wait out the 3 months.
Law Office of Bonita M. Riggens
669 1st Ave. N.
St. Petersburg, FL 33701
Employment law representation: Contracts (Noncompete Agreements, Severance Negotiations), Defamation, Discrimination (Age, Disability, Gender, Pregnancy, National Origin, Race, Religion), Family and Medical Leave Act, Overtime Law. Privacy Law, Retaliation and Whistleblower Law, Sex Harassment, Unemployment Compensation, Unpaid Wages, USERRA