The COVID-19 pandemic has generated a myriad of legal issues, especially regarding employment laws. While many businesses have developed or updated employment policies on issues such as remote work and medical leave, few have likely considered how COVID-19 might impact non-compete agreements.
Recently, a trial court in Miami refused to enforce a non-competition agreement against a former employee because it found that putting the employee out of work during the COVID-19 pandemic would be contrary to Florida public policy. The Third District Court of Appeals reversed that decision just last week. The appellate court rejected the argument, advanced by the employee and agreed to by the trial court, that the non-compete should not be enforced so the employee could keep his new job performing storm damage and engineering services during the pandemic. In support of reversing the trial court, the Third District Court of Appeals cited Florida’s non-compete statute, Section 542.335, which provides: “In determining the enforceability of a restrictive covenant, a court … [s]hall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.” Therefore, the appellate court ruled that the trial court committed reversible error in denying the employer’s request for an injunction.
This decision is good news for Florida employers because an appellate court decision recognizing COVID-19 as a reason to refuse to enforce non-competes would have generated further unpredictability in this area of the law. Florida is currently one of the most employer-friendly jurisdictions when it comes to enforcement of restrictive covenants such as non-competes and non-solicitation agreements. Businesses hoping to enforce a restrictive covenant against a former employee, or considering hiring an applicant that signed a non-compete with his or her former employer, should consult with legal counsel experienced in this field.
The appellate decision discussed above is: GFA Int’l, Inc., v. Eric Trillas, et al., 3D21-619, 2021 WL 3889283, at *1 (Fla. 3d DCA Sept. 1, 2021).
Roger Feicht is a litigator who focuses his practice defending and prosecuting employment related lawsuits. Roger represents employers and employees in litigation relating to allegations of discrimination and harassment, and disputes over non-competition or non-solicitation agreements.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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