Three Ways to Challenge the Non-Compete Clause

Litigation involving non-compete clauses can become quite contentious and any such case can be drawn out by your former employer. Florida law presumes that non-compete agreements are valid, so you need the counsel of an experienced Fort Lauderdale employment attorney to challenge the enforcement of the non-compete clause.

How Your Former Employer Can Ruin Your New Job

What typically occurs is your former employer sends a letter to both you and your new employer. The letter often threatens to sue both you and your employer, which causes you to be released from your new position, since your new employer does not want to incur the expense of potential litigation.

At this point, you should speak with an experienced employment lawyer to discuss ways to challenge the enforceability of the non-compete clause. Here are three ways you can attempt to challenge the provision:

  1. Your former employer breached the employment contract

If your employer breached the underlying employment agreement, you can argue that the agreement itself is void and therefore unenforceable. Generally, employers include non-compete provisions in an employment contract that sets forth yearly compensation, any bonus structures, health insurance, 401(k) stipulations, and so forth. If your former employer breached the agreement by failing to comply with the compensation provision or insurance provision, the rest of the agreement can be challenged as null and void.

  1. Non-compete provision is unenforceable because it is unreasonable and or onerous

If the non-compete provision requires you not to join a competing company for five years and puts the geographic range as the entire country, you can challenge the non-compete as unenforceable due to being overly onerous and unreasonable. Typically, Florida courts agree that a non-compete period two years or less, is reasonable and valid. If, on the other hand, the non-compete period extends beyond two years, the provision is presumed invalid. For a time period between six months and two years, the burden is on the employer to prove that the non-compete period is reasonable.

  1. No legitimate business interest in enforcing the non-compete clause

An employer has no legitimate interest in enforcing a non-compete provision against an employee such as an office manager or receptionist. Also, an employer phasing out of an area of business has no legitimate interest in preventing an employee from working in that area. For example, if you accept a new job because your former employer announced that they are closing down their IT department, then your former employer cannot reasonably attempt to enforce the non-compete provision if you join another company’s IT department.

What Happens If Non-Compete is Found to Be Unenforceable

If a Florida court determines that your non-compete provision is invalid, your former employer will typically be ordered to pay attorney’s fees and costs. In certain circumstances, your former employer could be ordered to pay monetary damages for tortious interference with an employment relationship. This remedy of monetary damages is generally available if you were dismissed from your new job as a proximate result of your former employer’s threat of litigation.

Fort Lauderdale Non-Compete Clause Attorney

Non-compete clauses are a relatively complicated area of the law possibly involving trade secrets, proprietary information, business goodwill, customer lists and the concept of “legitimate business interests.” This is why you need to retain an experienced employment lawyer to fight for your rights. The office of Mark J. Berkowitz, P.A. offers practical and legal solutions. Contact our office today to speak with an experienced Fort Lauderdale non-compete clause contract attorney today.


Successfully Defending Employees in Noncompete and Trade Secret Litigation