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 Orlando,
Florida Non-Compete
Agreement Lawyer / Attorney
Non-Compete Agreement Defenses
The most effective defense to a non-compete agreement is that
the employer materially breached the contract between it and the
former employee prior to the employee's alleged breach, thereby
obviating any obligation on the part of the employee to comply
with same.
Florida law holds that an employer's material breach
of an employment contract is a relevant factor in determining
whether an employer is entitled to a temporary injunction
enforcing a covenant not to compete. In the case Cordis
Corporation v. Prooslin, 482 So.2d 486 (Fla. 3d DCA 1986),
the court affirmed the trial court's decision to deny a
temporary injunction where there was evidence that the
employer's breach of the underlying contract cast doubt on
whether or not the employer was clearly entitled to success on
the merits.
The Prooslin court recognized that if an
employer is in breach or default under an agreement or when he
gives good cause for a former employee's non-performance he has
no standing in equity to seek an injunction. The Prooslin
court noted that the trial court's discretion in granting a
temporary injunction should be guided by established rules and
principles of equity jurisprudence.
In the case of Troup v.
Heacock, 367 So.2d 691 (Fla. 1st DCA 1979), the appellate
court reversed the trial court's decision that granted a motion
for temporary injunction. The appellate court noted that the
employer had materially breached the employment contract and
therefore the covenant not to compete was unenforceable by the
employer. The Troup court stated that if the injunction were
allowed to stand not only would it be contrary to equity but it
would result in inverse peonage.
Numerous other Florida cases
have recognized the a prior material breach by an employer will
discharge an employee from abiding by a covenant not to compete.
Generally Seaboard Oil Co. v Donovan, 128 So. 821 (Fla. 1930);
Sarasota Beverage Company v. Johnson, 551 So.2d 503 (Fla. 2d DCA
1989) (en banc); Channell v. Applied Research, Inc., 472 So.2d
1260,1262 (Fla. 4th DCA 1985); Thomas v. Fed, Ins. Agency, 51
B.R. 653 (Bankr. M.D. Fla. 1985).
Similarly,
whether the employee while employed was subjected to
discrimination and/or employment actions which were illegal or
against public policy may create a defense toward enforcement of
a covenant or other duty under the doctrines of unclean hands,
or equitable estoppel, etc. Moreover, the employer's subsequent
actions (i.e., anti-competitive activity, tortious interference,
etc.) arguably could prevent it from obtaining the relief sought
under these theories. In Lee & Associates, Inc., of North
Florida v. Lee, the court held that where the specific contract
language provided, a covenant not-to-compete in an employment
contract did not apply to the employee who was not discharged
for good cause and did not voluntarily leave his employment.
Violations of the Fair Labor Standards Act/Overtime, is a
frequently used defense to enforcement of a non-compete
agreement.
Obviously,
all monetary and breach of contract claims should be asserted
specifically. These may include claims for payment of salary,
severance pay, commissions, expense reimbursement, vacation and
sick pay, etc.
CONCLUSION
An employee must contend with many concerns when faced with
restrictive covenant litigation. Being cognizant of the time,
expense and commitment required, the most prudent course is for
the employee to consult with counsel early and work out a plan
of action before he or she leaves the place of employment. In
view of the high stakes involved, all defenses to injunctive
relief should be investigated and vigorously pursued.
For a confidential
consultation regarding potential employment
dispute cases, contact the Law Office of N. James
Turner, Esq., P.A. at
(407) 422-6464
The
hiring of a lawyer is an important decision that should not
be based solely on advertisements. Before you decide on the
hiring of a lawyer, you should learn about the lawyer's qualifications
and experience.
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