Non-Compete Clause May Apply Even When Employer Breaches

It is entirely possible that an employee may still be subject to a non-compete clause even if the employer breaches the employment contract.  This may be the case if the non-compete clause is deemed to be independent of the employment agreement.    In Reliance Wholesale, Inc., v. Godfrey, 51 So. 3d 561 (Fla. 3d DCA 2010), the appellate court determined that an employee was subject to a non-compete clause even when the employer failed to pay the employee a commission.  The court concluded that the non-compete agreement was an independent agreement and that the employer’s failure to pay the commission could not be used as a defense.  The non-compete clause specifically identified that the employer’s breach could “not constitute a defense to the enforcement of” the agreement.  In other words, an employer’s breach of an agreement may very well be irrelevant to the enforcement of a non-compete clause.  Employees need to read their agreements carefully and employers should take care to write their non-compete agreements to protect their legitimate business interests.

Kelsky Law, P.A., welcomes the opportunity to draft and review non-compete clauses for employers and employees.

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.

Brad Kelsky