There is no way of knowing how long you will stay with your present employer. When you first started, you may have believed you were in your dream job. But conditions and circumstances change, and you may be ready to move on.
If you work in a high-end profession, your employer may have asked you to sign a non-compete agreement before hiring you. Many companies compel new employers to sign such documents to protect their intellectual property, trade secrets, and relationships with customers. A non-compete agreement is a restrictive covenant that prohibits you from working for a company that is in the same line of business for a specific amount of time.
Non-compete agreements are not always enforceable. Judges tend not to like them because they interfere with the operation of the free labor market. However, courts also realize that companies have legitimate interests that ought to be protected. The more narrowly drawn a non-compete agreement the more weight it will carry in court. Broadly written non-compete agreements are much harder to enforce.
The most important thing to remember is that you are not necessarily locked in by a non-compete agreement. The latter are designed to make employees think twice about leaving a company. Most employees do not have the will or resources to fight a non-compete. They believe that they are bound to the agreement, and that they risk significant financial set-back if they try to fight.
This is not the case. On this issue, courts lean toward employees. Their guiding principle is that people should not be denied the ability to earn a livelihood or work for whichever company they want. If you have signed a non-compete agreement and have been recently fired, offered a better job, or feel the need to quit for some other reason, you should try to beat the agreement.
You can get the legal help and insight you need by hiring a Tampa Florida non compete attorney. You should resolve the matter before joining another firm. This will save you and them the trouble of being threatened with a lawsuit by your former employer.
Legal Arguments to Defeat a Non-Compete
The best way to save time, energy, and money over this issue is to consult a Tampa Florida non compete attorney before you sign such a document. But if you neglected to do this, you will need to enlist one to free yourself from your employer. Here are some of the legal arguments you can employ:
1. Your Employer Has Breached The Contract
Many employers do not create a separate non-compete document for you to sign. They instead include it as a provision in a larger contract that details compensation, insurances, and other conditions of employment. You should have your lawyer go through the contract line-by-line. If your employer failed to pay you due compensation or failed to meet any other obligation, then they have breached the contract. In this instance, you are relieved of all obligation to it, including the non-compete provision.
2. Your Employer Has No Legitimate Interests To Enforce
Many employers make the mistake of creating overbroad non-compete agreements. Your employer has a claim on the investments they’ve made, the institutional knowledge they have accumulated, and the customer relationships they have forged; they do not have a claim on the skills, knowledge, and insights you have developed on your own and brought to the company. If you are at the higher end of the services industry, an employer cannot stop you from working with another company in that industry; they can only prevent you from using what you know about them to help a rival compete. For example, if you leave a software development firm, they cannot stop you from working for another such company for 2 years. They can only prevent you from using their intellectual property in your new job.
There are also protections for workers who are in lower level service jobs. A company has no legitimate interest in enforcing a non-compete against receptionists and clerical workers. These jobs require a set of generic skills that are obtained by the individual worker and can be applied quite broadly in any company.
An employer will also find it hard to enforce a non-compete if an employee was working on a product line or business function that it is phasing out. The Florida statute that allows non-compete agreements defines the legitimate interests of a company as:
- Trade secrets
- Confidential business or professional information
- Long-standing customer relationships
- Specialized training
Anything beyond these can be challenged—with a hope of success.
3. The Duration Of The Restriction Is Too Long
In most instances, a non-compete agreement that restricts an employee for two years is allowed. In all cases, if challenged, the employer will have to prove that the time period is reasonable. If your employer tries to bind you for more than 2 years, they will have to provide good arguments for doing so. If you worked on a new product that is soon coming to market, the court may enforce a non-compete until the product is made available to the public.
4. The Information Your Employer Is Protecting Is Already Available To The Public
An employer must have actual long-standing relationships with clients that they want to protect. They cannot prohibit you from working because of a potential client list. If your company has gotten sales leads by scouring through phone books, professional directories, social media, or other Internet or notification services, they have not generated anything that is special and privileged. They have done what any other company could do and used sources available to anyone in the industry. Existing customer lists and unique information sources are protected, public directories are not.
5. Public Health And Safety
This category applies primarily to physicians, nurses, and others in the health services industry. Public hospitals do not mandate non-compete agreements. But if you are part of a private clinic or consortium, you may have been forced to sign one. You can argue that such a restriction does a disservice to public health. This argument will be especially potent if you are in a specialty in which there is a shortage of qualified people, or you are in a geographic area that has a shortage of medical professionals. If, for example, you are one of only a handful of people in the world who can perform a specific procedure, a judge will not likely enforce a non-compete agreement.
Your Right to Fight
You have the right to use your talent and acquired skill to advance your career and earn a livelihood. It is wrong for any company to try to bully you into staying with them through an overly broad non-compete agreement.
You should not assume that the law will be on the side of your employer. Employees who are willing to fight can often limit or eliminate the worst parts of a non-compete agreement. If you are like most people, you will be mainly concerned about financing your legal challenge. Do not worry too much about this. A sharp non-compete attorney will know when the law is on the side of their client and the chances of winning are good. An employer who tries to enforce a non-compete agreement and fails will be forced to pay attorney fees. They may also be forced to pay other forms of compensation to their employees. However, you can prevent the matter from going to litigation by consulting a lawyer before you leave and making certain adjustments to your non-compete agreement.