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 Orlando,
Florida Non-Compete
Agreement Lawyer / Attorney
REPRESENTING THE EMPLOYEE
IN RESTRICTIVE COVENANT
DISPUTES
Probably the most important strategy decision to
employ when faced with an application for
injunctive relief is to take the offensive
immediately. The employee must attempt to turn
the tables on the employer in order to gain a
tactical advantage. Therefore, an employee who
may be faced with the threat of imminent
litigation through the filing of an injunction
for alleged breach of a restrictive covenant may
wish to consider a preemptive strike: filing a
motion to dissolve or commencing a declaratory
judgment action, which would seek a
determination of the enforceability of the
restrictive covenant and a declaration of its
invalidity, and also may raise other related
issues and claims. If a non-final appeal is
necessary, it should be considered that in cases
where there are no disputed factual matters at
issue, the appellate court will review the
injunction de novo. And, although the
interpretation of a covenant not-to-compete is a
matter of law to be resolved by a trial court,
an appellate court is nevertheless empowered to
undertake an independent assessment of the
covenant's meaning. Thus, an appellate court is
not restricted in its ability to reassess the
meaning and effect of the parties'
non-competition agreement and to reach a
conclusion which differs from that of the trial
court.
As the purpose of an injunction is to prevent irreparable harm,
one such tactic is to show that the employer will not be
irreparably harmed absent the injunction. However, where a
plaintiff sufficiently demonstrates that a former employee is
contacting its customers, the presumption of irreparable injury
attaches.
In addition, one of the requirements for the issuance of an
injunction is a showing that success on the merits is likely. In
Cordis Corp. v. Prooslin, the court held that there was no abuse
of discretion in denying a temporary injunction where the record
showed doubt that the employer had the ability to succeed at
trial. Accordingly, any available factual and legal arguments
should be made which show that the claims have little, if any,
chance of success. Furthermore, a showing that the former
employer does not have a legitimate interest to protect and/or
that the restrictive covenant does not reasonably protect that
interest will go a long way toward casting doubt on the
employer's right to an injunction.
It should be kept in mind that the ultimate goal is to declare
the restrictive covenant invalid, and, if appropriate, to
recover on the employee's counterclaims. Therefore, that
individual must have "clean hands" and be prepared to show the
Court that no improper actions were committed in connection with
his or her former employment. Any arguably wrongful actions by
the employee during the course of the litigation must be avoided
at all costs.
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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