Florida Employer Non-Solicitation & Non-Disclosure Agreements

During the COVID-19 pandemic, many people found themselves in a situation where they either were let go from their job or they decided to leave their job. As a result, some of these people faced a predicament where they were subject to a non-compete, non-solicitation, or non-disclosure agreement that they signed while still employed. Our firm has recently received many inquiries about whether a former employer can enforce such agreements, and oftentimes, the answer is “no.”

Previously, we wrote about non-compete agreements here, which are written agreements with an employer, or provisions within a longer written agreement, that restrict the ability of an employee to work in a particular line of business. Non-solicitation agreements are similar, but these prohibit the employee from asking other employees and/or customers of the former employer if they would like to leave the former employer with them. Non-disclosure agreements prohibit an employee from sharing with anyone else certain trade secrets or confidential information of the employer that the employee learns during its employment.

What are the Requirements for Such Agreements to be Enforced?

All these agreements are enforceable in Florida, so long as certain requirements are met:

1. The agreement must be in writing and signed by the person it is being enforced against;
2. There must be a “legitimate business interest” that the employer is seeking to protect;
3. The duration of the agreement must be reasonable; and
4. The scope, or geographic area to which the agreement applies, must be reasonable.

These agreements are strictly and narrowly construed by courts in a way that will only protect the employer’s legitimate business interest claimed, and no more.

What Types of Solicitation or Disclosure Restrictions are Enforceable?

Conduct generally amounts to improper solicitation if the employee proactively seeks out the company’s other employees and/or customers to entice them to leave the employer.

Some examples of solicitation or disclosure that were prohibited by agreements, and that Florida courts found enforceable, include:

• An employee asking other employees “whether they were satisfied with their jobs” and “whether they would be interested in working for him in a similar business;”
• After leaving employment, a former employee reached out to her former employer’s customers via email saying she was trying to “remain low key” and avoid “conflict of interest” issues but she was willing “to work with [the client] behind the scenes for a little while,” and encouraged the clients “to contact her if she could be of any assistance;”
• A former employee disclosing customer lists and pricing structures of former employer;
• After leaving employment, disclosing the secret formula that former employer uses in products.

When are Non-Solicitation or Non-Disclosure Agreements Susceptible?

Whether certain conduct will violate a non-solicitation or non-disclosure agreement is a fact specific inquiry and requires an analysis of the agreements at issue.

Some examples where Florida courts found that there was no improper solicitation or disclosure under the agreement:

• ·The mere fact that an employee, who is planning to leave his employment to work for a competitive company, had a conversation with a fellow employee about whether the fellow employee would consider a job with the same competitor;
• An employee, while he was still employed, posted a resignation letter in the employee area of the employer stating that the employee was “moving on” to another company;
• A former employee could not be prohibited from servicing customers who voluntarily followed her to her new place of employment;
• Where former employer did not have exclusive relationships with any of its customers and customers’ information was readily obtainable through yellow pages and trade subscriptions, a non-disclosure/non-solicitation agreement that prohibited the former employee from revealing names or addresses of employer’s customers or calling or soliciting anyone who was a current customer or potential customer, if such potential customers were identified through leads developed during employee’s course of employment, was not reasonable;
• When the employer prohibits disclosure of, and classifies as “confidential,” information that is not actually confidential. This can be information that is shared with third parties without restriction, information available on an employer’s website, information that is shared with employees without any agreement or understanding of confidentiality, information that is commonly known, and information that has been published.

If you need an attorney with experience in litigating non-compete, non-solicitation, or non-disclosure agreements, contact the lawyers at Rabin Kammerer Johnson today at 561-659-7878 to schedule a free initial consultation.