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The enforcement of non-compete agreements is subject to Fla. Stat. § 542.335. The statute sets forth various presumptions as to reasonable time restrictions on restrictive covenants. These presumptions are “rebuttable” meaning that the Court can consider evidence in opposition that may lead to an alteration of the time periods set forth in the statute. Although it is generally unlikely that a court will deviate from those presumptions, it should be noted that Florida case law does suggest that courts will be less likely to limit time duration of the restrictive covenants if the person is a “key” employee. One court stated, “However, the higher in management and the more key or important the function performed by the employee the longer the time which could be justified for a no-competition covenant. In such a case, a longer time may be needed to protect the former employer’s business.” Dorminy v. Frank B. Hall & Co., Inc., 464 So. 2d 154 (Fla. 5th DCA 1985). This sentiment was recently confirmed in Avalon Legal Information Services, Inc., v. Keating, 2013 WL 843033 (Fla. 5th DCA March 8, 2013). Higher-level employees should be cognizant of the fact that, if there is a chance to rebut the time presumptions set forth in the statute, then it is less likely for those former employees to escape the period of the restrictive covenant than it would be for a lower-level employee. In contrast, employers seeking enforcement of non-compete agreements against former higher-level employees should have some level of comfort that the time periods (as long as they are in compliance with the statute) are not likely to be modified downward should a dispute arise.
Brad Kelsky, Esq., and Kelsky Law, P.A., welcome the opportunity to consult with employers and employees concerning non-compete agreement enforcement.
This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.