FLORIDA NON-COMPETE AGREEMENTS: PUBLIC POLICY RARELY AFFECTS FLORIDA COURTS’ ANALYSIS OF WHETHER TO ENFORCE NON-COMPETE AGREEMENTS

Generally, a non-compete agreement is enforceable if it is in writing, supports an employer’s legitimate business interest, and is not overly restrictive in its duration and geographical area. See Florida Statute § 542.335. The Florida Statute governing non-compete agreements lists several public policy considerations that appear, at first blush, to be an impediment to the enforcement of employer’s enforcement of non-compete agreements. These provisions suggest that an employer might need to prove to the court that an injunction is in the public interest before the court would enforce an injunction on a non-compete agreement. However, the interests of the public and the former employee are rarely influential in proceedings to enforce a non-compete agreement in Florida state courts. Peter Mavrick is a Miami non-compete lawyer and business litigation lawyer who has extensive experience in representing the interests of businesses and business owners.

In theory, § 542.335, Florida Statutes, provides for a few legal bases whereby a court could refuse to enforce an otherwise valid non-compete agreement. Section 542.335(g), Florida Statutes provides that “[i]n determining the enforceability of a restrictive covenant, a court: […] [s]hall consider the effect of enforcement upon the public health, safety, and welfare.”

Further, § 542.335(i) provides that:

No court may refuse enforcement of an otherwise enforceable restrictive covenant on the ground that the contract violates public policy unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint.

The implication of such a provision is that a court could refuse to enforce a non-compete agreement for public policy reasons when the court articulates those reasons in its order and those interests “substantially outweigh the need to protect [the employer’s] legitimate business interests.”

While it is possible that a Florida court could someday refuse to enforce an otherwise valid non-compete agreement because it is contrary to the “public health, safety, and welfare” or because of public policy considerations, Florida appellate courts have not done so at this point. It does not appear as if there is any reported case where the Florida state trial court has ever refused to enjoin a former employee from competing on the basis of public policy under § 542.335, Florida Statutes. See Hank Jackson, Florida’s Noncompete Statute: “Reasonable” or “Truly Obnoxious?”, Fla. B.J., March 2018, at 10; Amy D. Ronner, Healers Barred from Healing: Physician Noncompete Agreements, Fla. B.J., March 2018; John Sanchez, A Survey of Physician Non-Compete Agreements in Employment Under Florida Law, 35 Nova L. Rev. 63 (2010). This of course does not mean that a court could not do so in the future.

Florida public favors enforcement of restrictive covenants, and any countervailing public policy must overcome the inherent public policy interest that Florida has in enforcing lawful non-compete agreements. Envtl. Services, Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009) (“The courts also recognize that the public has an interest in the enforcement of valid restrictive covenants”) TransUnion Risk & Alternative Data Sols., Inc. v. Reilly, 181 So. 3d 548 (Fla. 4th DCA 2015) (Holding that the employer does not have the burden of proving that public policy is in favor of enforcing the subject non-compete agreement); Autonation, Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004) (“[P]ublic policy in Florida favors enforcement of reasonable covenants not to compete”).

In addition, Florida courts have routinely rejected arguments that public policy is against enforcement of a non-compete agreement. See e.g. Avalon Legal Info. Services, Inc. v. Keating, 110 So. 3d 75 (Fla. 5th DCA 2013) (Finding a paralegal’s professional ethical concerns do not outweigh the public policy interest in enforcing non-compete agreements); Hilb Rogal & Hobbs of Florida, Inc. v. Grimmel, 48 So. 3d 957 (Fla. 4th DCA 2010) (Rejecting former employee’s argument that the public should have a right to select which service provider that they hire); MDS (Canada) Inc. v. Rad Source Techs., Inc., 09-61652, 2009 WL 10668765 (S.D. Fla. Oct. 27, 2009) (Reducing health care costs in Florida does not outweigh interest in enforcing non-compete agreements); Jewett Orthopaedic Clinic, P.A. v. White, 629 So. 2d 922 (Fla. 5th DCA 1993)(Finding that a physician’s patients access to healthcare is not sufficient to overcome the public’s interest in non-compete litigation for a temporary injunction under § 542.335, Florida Statutes).

Peter Mavrick is a Miami non-compete attorney and business litigation attorney. This article does not serve as a substitute for legal advice tailored to a particular situation.