Injunctive Relief Against a New Employer for Hiring a Former Employee Subject to a Non-Compete

Non-compete agreements between an employer and an employee are governed by § 542.335, Fla. Stat. However, that statute does not provide an employer with any rights against a third-party.  For example, if an employee goes to work for a competitor, the former employer does not have the ability to bring a claim under the statute against the new employer.  Bauer v. DILIB, Inc., 16 So. 3d 318 (Fla. 4th DCA 2009).  Equity, though, allows an employer to bring a claim for injunctive relief against the new employer if the new employer has notice and an opportunity to be heard.  Id. The importance of this nuance is that the claim against the new employer does not carry a right to recover attorney’s fees.  While there is a conflicting decision out there on this issue, Sun Group Enterprises, Inc. v. DeWitte, 890 So. 2d 410 (Fla. 5th DCA 2004), that decision was superseded by a change in the statute and, thus, its applicability is questionable.  Thus, a former employer should be aware of its right to obtain injunctive relief against a new employer but the pursuit of that right may not bring about the ability to recover attorney’s fees.