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Trade secrets are a form of intellectual property that are maintained in secrecy. There is no bright line rule that the courts use to determine whether an employee should be enjoined from utilizing a corporation’s trade secrets. The courts must first determine whether the information in question constitutes a trade secret. Courts also look to the reasonable measures taken by the trade secret owner to protect that information. Courts have not been clear on whether skills and knowledge an employee acquired during the course of his employment can be protected as trade secrets.  Peter Mavrick is a Palm Beach trade secret lawyer who has extensive experience with trade secret misappropriation.

A trade secret exists if it has economic value because of it secrecy. As a property right, trade secrets cannot be appropriated without the exclusive consent of the trade secret owner. If a trade secret is misappropriated and made readily available to other competing businesses, they can derive economic benefits from that information to the detriment of the trade secret owner.

In Lee v. Cercoa, Inc., 433 So. 2d 1 (Fla. 4th DCA 1983), Florida Fourth District Court of Appeal was confronted with the issue of whether the skills and knowledge a former employee acquired during the course of his employment are trade secrets. In Lee, the employer was engaged in the business of manufacturing and marketing polishing compounds for glass and plastic materials. The former employee worked for two years as a production manager for the employer. As a part of his job, the former employee learned about the combination of certain chemicals and products to formulate polishing compounds. When the employer learned that the employee was going to use the information he acquired during his employment to begin manufacturing his own glass polishing compound, the employer terminated the employee and filed a lawsuit to enjoin the employee from using trade secrets belonging to the employer.  The former employee contended there was no valid agreement between him and the employer prohibiting him from disclosing or using such trade secrets. The former employee further contended that the manufactured glass polish compounds were derived from major elements and that those processes were well known to others in that field. The trial court granted the employer’s injunction preventing the former employee from utilizing the corporation’s trade secrets. The former employee then appealed that decision.

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If an employer can successfully meet their burden and establish the necessary elements for a valid non-compete agreement, the court will likely grant an injunction to protect the employer’s legitimate business interests. The injunction will only be granted if it is determined that the former employee breached the valid non-compete agreement. Once this is determined, the injunction will prohibit the former employee from engaging in the alleged harmful conduct for a specified period. The court has the discretionary power to determine what period the injunction should be measured from. The injunction could be measured from the date of the employee’s termination, or from the date of the court order. Peter Mavrick is a Fort Lauderdale non-compete lawyer who has extensive experience dealing with non-compete agreements and claims for injunctive relief.

The court’s decision to grant or deny a motion for injunctive relief is purely discretionary. An injunction is viewed as an extraordinary remedy that requires the court to balance certain factors. Particularly, the court will balance the possibility of irreparable harm to the employer, and the inadequacy of damages that would result if the injunction were not granted. If a court finds that the employee did violate a valid non-compete agreement, the court will also look to see whether the restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interests of the employer.

In Anakarli Boutique, Inc. v. Ortiz, 152 So. 3d 107 (Fla. 4th DCA 2014), Florida’s Fourth District Court of Appeal was confronted with the issue of how the injunction period should be measured.  In Ortiz, the employer brought an action against a former employee for breach of a two-year non-compete agreement, and filed a motion for temporary injunction. The former employee allegedly violated her non-compete agreement with the employer and left the company to open her own competing business near the company’s location. The trial court denied the employer’s motion for temporary injunction. The trial court reasoned that the two-year non-compete period elapsed when the former employee became an independent contractor and it expired before she left to start her own competing business. The employer rebutted the trial court’s reasoning and contended that the two-year non-compete period should have started from the time the former employer left. The employer then appealed.

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Non-compete agreements serve to protect an employer’s business interests and prevent employees from engaging in unfair competition. When a business sells its assets, merges with another company, or dissolves entirely, the ability to assign a non-compete agreement is affected differently. Peter Mavrick is a Fort Lauderdale non-compete lawyer who has extensive experience dealing with non-compete agreements and their assignability.

Florida’s Fourth District Court of Appeal in Magner Intern. Corp. v. Brett, 960 So. 2d 841 (Fla. 4th DCA 2007), was confronted with the issue of whether a corporate successor could enforce the non-compete agreement of the former employer. The corporate successor sought an emergency motion for temporary injunction to enforce the former employer’s non-compete agreement. In response to the corporate successor’s motion, the employee alleged the following: (1) that the former non-compete agreement was no longer valid because the corporation had been dissolved; (2) two separate corporations had been formed; and (3) as a result of the dissolution his non-compete agreement had not been properly assigned to the corporate successor. The Seventeenth Judicial Circuit Court ruled in favor of the employee and denied the corporate successor’s emergency motion because there was no standing to enforce the provisions of the non-compete agreement. The corporate successor then appealed.

In Magner, a Connecticut based corporation was in the process of a corporate reorganization and separation. Originally, the corporation contained two divisions, a domestic division and an international division.  As a part of the Reorganization Plan, all of the assets from the international division were transferred to the newly organized Florida corporation. Since the original non-compete agreement specifically stated that the Employment Agreement “shall be interpreted and enforced in accordance with the laws of the State of Connecticut,” the Florida courts applied Connecticut law. Under Connecticut law, non-compete agreements may be assigned upon the sale of a business or automatically assigned where the entire business is sold to another entity. The reason being that an employee’s covenant not to compete is “an assignable asset of the employer.”

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Title VII of the Civil Rights Act of 1964 is a federal law which makes it unlawful to discriminate against a job applicant or employee based on their race, color, religion, sex, or national origin. This article provides an overview of the Faragher-Ellerth defense and how it can protect employers against claims for sexual harassment under TitleVII. Peter Mavrick is a Miami employment lawyer who has extensive experience dealing with Title VII claims of sexual harassment.

The Faragher-Ellerth defense comes from two landmark opinions delivered by the United States Supreme Court. The Supreme Court created the Faragher-Ellerth affirmative defense to provide employers a safe harbor from vicarious liability resulting from sexual harassment claims against a supervisory employee. The employer must satisfy two elements to successfully assert this defense: “(a) that the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior, and (b) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 765 (1998).

The United States Eleventh Circuit Court of Appeals in Madray v. Publix Supermarkets, Inc., 208 F.3d 1290, 1296–97 (11th Cir. 2000), analyzed the Faragher-Ellerth defense in connection with a claim for sexual harassment under Title VII. In Madray, two female employees alleged Title VII hostile environment sexual harassment and claimed the employer should not be entitled to use the Faragher-Ellerth defense. The employer rebutted their argument and moved for summary judgment alleging it established the requirements under the Faragher-Ellerth defense.

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The Fair Labor Standards Act (“FLSA”) establishes an employer’s obligations regarding the payment of overtime and minimum wages. The FLSA also contains various exemptions under which employees may not be entitled to overtime wages. One of these exemptions is the administrative exemption. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience dealing with the FLSA and its exemptions, including the administrative exemption.

There are several requirements that must be met for an employee to be exempt under the administrative exemption. To be employed in a bona fide “administrative capacity,” an employee must: (1) meet the compensation form and amount requirements; (2) have the primary duty of performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (3) have a primary duty that includes the exercise of discretion and independent judgment with respect to matters of significance. The general definition of “primary duty” is found at 29 C.F.R. § 541.103: “In the ordinary case it may be taken as a good rule of thumb that primary duty means a major part, or over 50%, of the employee’s time.”

In Saver v. Hyatt Corp., 407 So. 2d 228, 229 (Fla. 2d DCA 1981), Florida’s Second District Court of Appeals was confronted with the issue of determining whether an employee was performing office or non-manual work relating to the management of the employer’s business. In Saver, the employee was an assistant chief engineer who wore a uniform and spent most his time doing physical repair work with tools. Although, the administrative exemption was primarily intended for white collar employees, it does not completely prohibit performance of manual work by an administrative employee.

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The Florida Legislature enacted the Florida Civil Rights Act of 1992 with the intention of following the federal anti-discrimination law commonly known as Title VII of the Civil Rights Act of 1964. Both the Florida Civil Rights Act and Title VII of the Civil Rights Act prohibit certain types of employment discrimination. This article discusses whether the Florida Civil Rights Act prohibits pregnancy discrimination. Peter Mavrick is a Fort Lauderdale employment lawyer who has extensive experience in successfully defending employers accused of violating the Florida Civil Rights Act and Title VII.

Florida’s Fourth District Court of Appeal in Carsillo v. City of Lake Worth, 995 So. 2d 1118 (Fla. 4th DCA 2008), was confronted with the issue of whether pregnancy discrimination is prohibited by the Florida Civil Rights Act (“FCRA”). The employee is Carsillo brought an action against the city and alleged pregnancy discrimination and retaliation under the FCRA. The city moved for summary judgement and alleged that the FCRA does not prohibit pregnancy discrimination. The trial court ruled in favor of the city and the employee appealed.

The employee in Carsillo was a female firefighter/paramedic who had requested light duty within the fire department because of her pregnancy. Her request was granted, but it was not within the fire department and she initially objected. The employee then filed a lawsuit and alleged discrimination in violation of the FCRA because other employees with physical restrictions had been accommodated with light duty within the fire department.

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Intellectual property is the foundation for innovation and ingenuity. Protecting your intellectual property rights, both as an individual or business, is essential to maintaining an economic advantage over your competitors. Trade secrets are one of the most controversial forms of intellectual property because the information is maintained in secrecy. By contrast, other intellectual property, such as copyrights and patents, must follow certain legal procedures. The purpose of a trade secret is to protect any information that is proprietary to your business because it is a secret. A trade secret can be misappropriated by your competitors or employees, who are seeking to directly compete with your business.  Peter Mavrick is a West Palm Beach business lawyer who has extensive experience dealing with trade secret misappropriation.

As an individual or business owner, the preservation of your trade secret is paramount. It is important to take reasonable measures to ensure the protection of your trade secret. Although trade secrets do not require legal disclosure, they are still afforded legal protection. Florida’s Fourth District Court of Appeal in Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So. 3d 202, 203 (Fla. 4th DCA 2009), analyzed a corporation’s alleged claim of trade secret misappropriation by a business rival.

In Chemplex, the plaintiff owned a film spooling machine that would produce a variety of thin film products. The owner and his father invented and built the spooling machine used by the corporation. They also developed and designed all the products, manufactured them, and determined the formulations for all the required chemicals. Although the machine had numerous components that were simple and readily available on the open market, it was the specifications and calculations of these components that made the machine unique in its design and manufacturing capability. The owner of the machine also took reasonable measures to protect the machine. It was isolated and placed into a separate room only accessible by employees who were given permission to operate it. Upon the termination of one of its employees, the spooling machine was stolen and reproduced by a direct competitor. This enabled the plaintiff’s competitor to directly compete with the corporation because they could manufacture the same pre-cut rolls of thin film. Without direct physical access to the spooling machine, the pre-cut film rolls could never be reproduced because of the specific measurements involved.

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The Florida Civil Rights Act (“FCRA”) of 1992, Section 760.01, et. seq., Florida Statutes, was enacted to prohibit discriminatory practices against employees in the workplace. The statute itself states that it shall be “liberally construed.” Case law follows judicial decisions interpreting federal employment anti-discrimination laws such as Title VII of the Civil Rights Act of 1964. Although sexual harassment in the workplace is typically actionable under the FCRA, it is important to understand whether the FCRA imposes liability on individual employees or supervisors who allegedly engage in sexual harassment in the workplace.

Employment discrimination cases frequently seek to become personal vendettas by dragging their former supervisors into the litigation.  There is a body of federal and Florida state law regarding claims of discrimination against supervisors and other persons holding positions of authority.  Peter Mavrick is a Fort Lauderdale employment attorney who has extensive experience defending employers against sexual harassment claims under the FCRA.

The FCRA at Section 760.10(1)(a), Florida Statutes, defines unlawful employment practices as follows:

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As a business owner, ensuring that your customer list is adequately protected can often be a challenging task. Employees who have direct access to a customer list can misappropriate that information and use it to compete directly against the business. Fortunately, a business’s customer list may qualify as a trade secret to justify the enforcement of a non-compete agreement under Section 542.335, Florida Statutes. The aim is to prohibit employees from using the customer list for their own benefit. For a customer list to qualify as a trade secret, courts look at various factors, including but not limited to, the extensive work and considerable effort that went into creating the list, as well as the knowledge, time, and expense associated with its creation. Peter Mavrick is a Miami trade secret and non-compete litigation lawyer who has extensive experience with litigation involving misappropriation of business customer lists.

Simply because a business has a customer list, does not mean that list qualifies as a trade secret. When a customer list is more complex and contains information that is not easily obtainable in the public domain, it makes the content of the list more valuable. By contrast, when a customer list contains information that is easily obtainable on the open market, it is less likely that the list will qualify as a trade secret. Unfortunately, the courts have yet to establish a bright line rule when it comes to determining whether a customer list qualifies as a trade secret.

In Unistar Corp. v. Child, 415 So. 2d 733 (Fla. 3d DCA 1982), Florida’s Third District Court of Appeal analyzed a business’s customer list to determine whether it qualified as a trade secret. A former employer who was in the business of selling investment grade diamonds and gemstones to their customers through “financial planners,” sought a preliminary injunction to prevent former employees from contacting and selling to its customers. The employer alleged their customer list was a trade secret. The former employees contended, inter alia, that the employer is not entitled to a preliminary injunction because the customer list does not qualify as a trade secret since it was available to the public. The trial court denied the employer’s injunctive relief. The employer appealed.

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During discovery opposing parties request the production of relevant evidence and documents to encourage fair judicial proceedings and case settlements. Although the rules of both state and federal civil procedure are broad enough to encompass most discovery requests, not everything that a party requests is discoverable. There are certain objections and privileges that exist to protect against intrusive discovery requests. A key example of this is the trade secret privilege, which enables a party to refuse production during discovery because the evidence being sought is allegedly a trade secret. Peter Mavrick is a Fort Lauderdale trade secret litigation lawyer who has extensive experience dealing with discovery issues and disputes, including the trade secret privilege.

The trade secret privilege is addressed by Section 90.506, Florida Statutes, which states “a person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by that person if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require.  The privilege may be claimed by the person or the person’s agent or employee.” The Fourth District Court of Appeal was confronted with the issue of a party invoking the trade secret privilege in Am. Exp. Travel Related Services, Inc. v. Cruz, 761 So. 2d 1206, 1208 (Fla. 4th DCA 2000).

In Cruz, the plaintiff was a credit card company that sought the recovery of unpaid account charges from a former cardholder and employee. The defendant counterclaimed for damages and alleged that the credit card company had issued a supplemental credit card to a third party on her account and breached the terms of their agreement by authorizing the third party’s charges, even though she had closed her account. During discovery, the defendant requested production of the credit card company’s Internal Credit Authorizations Manual (“Manual”), the personnel files for herself and the other employees alleged to be involved in the unauthorized charges, and a report pertaining to the company’s investigation of these employees for similar misconduct. The plaintiff objected to the production of these items, and claimed the Manual was a protected “trade secret” under Section 688.002(4), Florida Statutes, otherwise known as Florida’s Uniform Trade Secrets Act. The plaintiff further objected to the production of the personnel files and investigative reports and alleged they were confidential and privileged commercial records.

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