MIAMI NON-COMPETE AGREEMENTS: NON-SOLICITATION COVENANTS

It is critical that Florida employers carefully write their non-compete agreements to ensure they are enforceable and prevent employees from performing the types of activities that the employer needs. Non-compete law in Florida is nuanced and slight deviations in contract wording can sometimes mean the difference between success or failure. Peter Mavrick is a Miami non-compete attorney, and also advocates for clients in Fort Lauderdale, Boca Raton, and Palm Beach, Florida. The Mavrick Law Firm represents clients in business litigation, trade secret litigation, employment litigation, trademark litigation, and other legal disputes in federal and state courts and in arbitration.

While non-compete agreements are interpreted pursuant to principles of general contract law, non-compete law is often considered to be a niche area of law. Non-compete contracts are governed by Florida Statute § 542.335. This statute limits the enforcement of non-compete agreements in certain areas, inter alia, limiting enforcement in circumstances where the employer has a legitimate business reason for the non-compete agreement (§ 542.335(1)(b)), limiting the enforceable time period (§ 542.335(1)(d)(1)), and barring enforcement of contract terms limiting the court’s ability to enforce attorneys’ fees (§ 542.335(1)(k).

Particular terms in non-compete agreements often have particular meanings. For example, determining whether the term “solicitation” applies to certain conduct can be deceptively difficult. Generally, for an activity to qualify as solicitation under the common meaning of the word, there must be a communication coupled with an underlining intention behind that communication. Solicit, Merriam-Webster (available at: https://www.merriam-webster.com/) (“to approach with a request or plea” or “to urge (something, such as one’s cause) strongly”); Solicitation, Black’s Law Dictionary (11th ed. 2019) (“an attempt or effort to gain business”). Whether a non-compete agreement barring “solicitation” bars particular conduct is determined by the general rules of contract interpretation and cases.

“Generally, the intentions of the parties to a contract govern its construction and interpretation.” Waverly 1 & 2, LLC v. Waverly at Las Olas Condo. Ass’n, 242 So. 3d 425 (Fla. 4th DCA 2018). Where contractual terms are clear and unambiguous, the court is bound by the plain meaning of those terms. The intent of the parties by their use of such terms must be discerned from within the ‘four corners of the document.’” Emerald Pointe Prop. Owners’ Ass’n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873 (Fla. 4th DCA 2008). “Furthermore, the language being interpreted must be read in conjunction with the other provisions in the contract.” Waverly 1 & 2, LLC v. Waverly at Las Olas Condo. Ass’n, Inc., 242 So. 3d 425 (Fla. 4th DCA 2018). “In construing the language of a contract, courts are to be mindful that ‘the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.’” Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197 (Fla. 1st DCA 2015). “To that end, a cardinal principle of contract interpretation is that the conduct must be interpreted in a manner that does not render any provision of the contract meaningless.” Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197 (Fla. 1st DCA 2015).

Generally, cases interpreting “solicitation” in non-compete agreements have found that the activity is active, rather than passive. Scarbrough v. Liberty Nat’l Life Ins. Co., 872 So. 2d 283 (Fla. 1st DCA 2004) (holding “that the term ‘solicit’ in an agreement prohibited the employee from being ‘proactive’ in such efforts”). Accordingly, an employee who explains she is opening up a different business to her co-workers in response to questions is unlikely to qualify as “soliciting” and employee, even if she presents this information in an enticing way. Alternatively, if that same employee invited the questioning employee to join her, and repeatedly followed up on that issue, it would be much more likely to qualify as solicitation. Scarbrough v. Liberty Nat. Life Ins. Co., 872 So. 2d 283 (Fla. 1st DCA 2004), citing Cf. FCE Benefit Adm’rs Inc. v. George Washington Univ., 209 F.Supp.2d 232 (D.D.C.2002)(“a person may, in appropriate circumstances, solicit another’s business regardless of who initiates the meeting”). Solicitation will usually be found even if an employee uses coded language to obscure attempts at solicitation. Kforce, Inc. v. Mickenberg, 846 So. 2d 1190 (Fla. 4th DCA 2003) (finding that an employee solicited a customer stating that wanted “‘to work with [the client] behind the scenes a little while’ and to ‘contact her if she could be of any assistance’”).

In Massey Services, Inc. v. Sanders, 5D19-3116, 2021 WL 742534 (Fla. 5th DCA Feb. 26, 2021), the court applied principles of contract interpretation, within the non-compete context, to evaluate whether an employee violated a non-compete agreement. The subject contract had provisions barring both competition and solicitation of either clients or employees. The action which the employer alleged qualified as solicitation was posting his resignation letter publicly, giving a co-worker contact information for his new employer, and saying that his new employer was a “good guy” to a co-worker.

Massey Services analyzed these statements and concluded they neither occurred within the limitation period nor qualified as solicitation under the contract. The employer alleged the contract barred solicitation of employees at all times. Massey Services disposed of that argument by analyzing the provision within the context of Florida non-compete covenant law. “To apply the time limitation only to the nondisclosure portion, which would leave the nonsolicitation portion without any temporal limitation, is illogical and unreasonable.” Massey Services, Inc. v. Sanders, 5D19-3116, 2021 WL 742534 (Fla. 5th DCA Feb. 26, 2021). Additionally, Massey Services found that the employee’s conduct was not active enough to qualify as solicitation under the terms of the contract.

Had the employer in Massey Services more carefully drafted the non-compete contract to specify that the non-solicitation provision applied both during and after employment and more carefully drafted the non-solicitation clause to identify the conduct at issue, the employer may have received a different result. Peter Mavrick is a Miami-Dade non-compete lawyer who also practices non-compete litigation in Palm Beach, Boca Raton, and Fort Lauderdale. This article does not serve as a substitute for legal advice tailored to a particular situation.