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Articles Posted in Employment Law

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Most claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (as amended) rely on circumstantial evidence.  The plaintiff-employee may attempt to prove discrimination through circumstantial evidence by satisfying the United States Supreme Court’s burden-shifting framework set forth it its decision in McDonnell Douglas v. Green, 411 U.S. 792 (1973).  The McDonnell Douglas framework, which is the prevailing framework used to analyze whether a plaintiff’s discrimination claim can survive an employer’s motion for summary judgment, puts the initial burden on the plaintiff to establish a prima facie case of discrimination. McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff establishes a prima facie case of discrimination by showing that: (1) he belongs to a protected class; (2) he was subject to an adverse employment action; (3) he was qualified to perform his job; and (4) his employer treated similarly situated employees outside his protected class more favorably. Lewis v. City of Union Cnty. Ga., 918 F.3d 1213 (11th Cir. 2019).  Once the plaintiff establishes a prima facie case, the burden then shifts to the employer, who must articulate a legitimate, nondiscriminatory reason for the challenged employment action. McDonnell Douglas v. Green, 411 U.S. 792 (1973). “[T]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

To satisfy the burden of producing legitimate, nondiscrimination reasons, the employer need not persuade the court that it was actually motivated by its proffered reasons. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). Rather, it is sufficient if the employer’s evidence raises genuine issues of fact as to whether it discriminated against the employee. Combs v. Plantation Patterns, 106 F.3d 1519 (11th Cir. 1997). “[T]o satisfy this immediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision has not been motivated by discriminatory animus.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). A subjective reason can constitute a legally sufficient, legitimate, nondiscriminatory reason under the McDonnell Douglas analysis. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000).

For example, a sufficient, legitimate, non-discriminatory reason for the employer to not hire the plaintiff applicant for a sales clerk or wait staff position may be that the employer did not like the plaintiff’s “appearance because his hair was uncombed and he had dandruff all over his shoulders,” “because he had his nose pierced,” or “because his fingernails were dirty.” Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). An example of a sufficient, legitimate, non-discriminatory reason for the employer to terminate the employee’s employment may be that the plaintiff disobeyed and/or refused to follow the employer’s rules and policies. Perryman v. First United Methodist Church, 2007 WL 703604 (M.D. Ala. Mar. 5, 2007). So long as the employer’s proffered reason for the adverse employment action is “one that might motivate a reasonable employer,” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001), the employer will likely meet its burden of producing a legitimate, nondiscriminatory reason for its decision.

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In business litigation, courts will enforce non-solicitation agreements against a business’ former employee to protect the business’ substantial customer relationships. Section 542.335, Florida Statutes governs the enforceability of customer non-solicitation agreements. Like other restrictive covenants in Florida, the non-solicitation clause must be: (1) reasonable in time, area, and line of business, (2) supported by a legitimate business interest, and (3) reasonably necessary to protect such interest. A business can utilize a non-solicitation clause to protect its legitimate business interests in its substantial relationships with existing or prospective customers. Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The right to prohibit the direct solicitation of existing customers is a legitimate business interest protected under Florida law. Atomic Tattoos, LLC v. Morgan, 45 So. 3d 63 (Fla. 2d DCA 2010). Indeed, non-solicitation provisions in employment contracts are sometimes necessary to protect an employer’s substantial relationships with its current and prospective customers. Milner Voice and Data, Inc. v. Tassy, 377 F. Supp. 2d 1209 (S.D. Fla. 2005). Florida courts routinely enforce non-solicitation agreements to preclude former employees from soliciting a business’ customers and disclosing the former employer’s confidential materials, such as pricing information. Austin v. Mid State Fire Equipment of Cent. Fla., Inc., 727 So. 2d 1097 (Fla. 5th DCA 1999).

The restrictive covenants must also be reasonable in time, area, and line of business. Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So. 3d 957 (Fla. 4th DCA 2010). Florida courts presume that covenants containing time restrictions of five years or less are reasonable. Section 542.335(e), Florida Statutes. Florida courts will uphold a non-solicitation agreement that does not specify a geographic restriction where the remainder of the agreement’s restrictions are otherwise narrow. Envtl. Servs., Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009).

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A party’s trade secrets are one of the categories of legitimate business interests protected by Florida’s non-compete statute, Section 542.335. Courts will enforce non-compete agreements to protect a party’s legitimate business interests if the interest qualifies as a trade secret under Florida law. In business litigation arising from a non-compete agreement, a common issue is whether the party enforcing the non-compete has a qualifying trade secret as a legitimate business interest. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, a trade secret consists of information that: (1) derives economic value from not being readily ascertainable by others and (2) is the subject of reasonable efforts to maintain its secrecy. Section 688.002(f), Florida Statutes. A business’ information that is generally known or readily accessible to third parties cannot qualify for trade secret protection. Bestechnologies, Inc. v. Trident Envtl. Sys., Inc., 681 So. 2d 1175 (Fla. 2nd DCA 1996). Moreover, an employer may not preclude a former employee from “utilizing contacts and expertise gained during his former employment.” Templeton v. Creative Loafing Tampa, Inc., 552 So. 2d 288 (Fla. 2nd DCA 1989). A plaintiff seeking enforcement of non-compete agreement bears the burden of demonstrating both that the specific information it seeks to protect is secret and that it has taken reasonable steps to protect this secrecy. Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407 (11th Cir. 1998).

Customer lists may constitute trade secrets that are protected as a legitimate business interest under Florida’s non-compete statute. As such, parties regularly seek to enforce non-compete agreements by claiming their customer lists qualify as trade secrets. In such business litigation actions, courts must decide whether the alleged trade secret information is the result of a party’s great expense and effort. East v. Aqua Gaming, Inc., 805 So. 2d 932 (Fla. 2nd DCA 2001). Information that is commercially available or easily accessible to the public will not typically qualify as a trade secret as a matter of law. However, information that is “distilled” from public information may qualify as a trade secret, depending on the expense and efforts taken by the compiling party. For example, a customer list consisting of names pulled from a public directory may not constitute a trade secret. By contrast,  a list of customers based on a public directory that contains the customer’s buying history may be protected under Section 542.335, Florida Statutes. Sethscot Collection, Inc. v. Drbul, 669 So. 2d 1076 (Fla. 3d DCA 1996).

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Employers typically are not liable for alleged retaliatory acts against their current or former employees when the employee is not qualified for the employment position. This is true under both Florida and federal law governing retaliation claims. The Florida Civil Rights Act of 1992 (FCRA) provides that it is unlawful for “an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation under this section.” Section 760.10 of the FCRA also governs claims arising over an employer’s “denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge” and “threats, reprimands, negative evaluations, [and] harassment[.]” Donovan v. Broward County Bd. Of Com’rs, 974 So. 2d 458 (Fla. 4th DCA 2008).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The FCRA was modeled after its federal law counterpart, Title VII of the Civil Rights Act of 1964, which prohibits employers with more than 15 employees from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). Federal and state courts in Florida analyze FCRA claims under the same framework as Title VII claims. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253 (11th Cir. 2010).

To establish a prima facie case for retaliation under Title VII, a plaintiff must show that he or she: (1) engaged in statutorily protected activity, (2) suffered an adverse reaction, and (3) the adverse reaction was causally related to the protected activity. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121 (11th Cir. 2020). Title VII prohibits an employer from retaliating against “any . . . [employee] . . . because [s]he has opposed any practice made an unlawful employment practice” by Title VII, “or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020). A plaintiff must satisfy the same elements to establish a retaliation claim under the FCRA. Russell v. KSL Hotel Corp., 887 So. 2d 372 (Fla. 3d DCA 2004). Once the prima facie case is established, it creates a “presumption that the adverse action was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d 1281 (11th Cir. 2009).

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One of the main issues in trade secret litigation is whether the business can prove the statutory element that there was a “misappropriation” of its trade secrets. To qualify for protection under Florida Uniform Trade Secrets Act (“FUTSA”) and the federal Defend Trade Secrets Act (“DTSA”), an employer must prove its trade secrets were acquired wrongfully through improper means. For liability to attach under the DTSA and FUTSA, the information must be the fruit of this wrongful acquisition, which is commonly referred to as “misappropriation.” Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

The federal trade secrets statute, DTSA , defines “misappropriation” to include “acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means” or “disclosure or use of a trade secret of another without express or implied consent” in specified circumstances. 18 U.S.C. § 1839(5). “Improper means” under the Act includes “theft, bribery, misrepresentation, [and] breach or inducement of a breach of a duty to maintain secrecy,” but excludes “reverse engineering, independent derivation, or any other lawful means of acquisition.” 18 U.S.C. § 1839(6). The definition of “improper means” under FUTSA includes “breach or inducement of a breach of a duty to maintain secrecy.” Fla. Stat. § 688.002(1).

Federal courts in the Eleventh Circuit regularly find that trade secrets are acquired through improper means when a former employee downloads a former employer’s trade secret information before resigning. For example, in Fortiline, Inc. v. Moody, the United States District Court for the Southern Distrit of Florida found “ample evidence to suggest that [the defendants] acquired [plaintiff’s] trade secrets through improper means” when a defendant “removed [plaintiff’s] customer contact and pricing information from the company server to his laptop hard drive, and used this information to solicit customers for [his new company] while working for [the plaintiff].” 2013 WL 12101142 (S.D. Fla. Jan. 3, 2013). Fortiline held that “FUTSA allows courts to issue injunctions to prevent actual or threatened misappropriation of trade secrets, whether or not a non-compete agreement restricts post-employment competition.” The Fortiline Court ultimately enjoined the defendant from soliciting customers after it was shown that Moody copied his former employer’s trade secrets from company laptops onto his own personal storage devices, which was determined through forensic examination.

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A frequent issue in business litigation is whether restrictive covenants in an employment contract are enforceable. “Florida statutory law (as a matter of public policy) does not allow a party to enforce a restrictive covenant unless it proves that enforcement is necessary to protect its legitimate business interests.” Evans v. Generic Sol. Eng’g, LLC, 178 So. 3d 114 (Fla. 5th DCA 2015). Generally, a “legitimate business interest must represent an investment by the employer and must enable unfair competition if misappropriated.” IDMWORKS, LLC v. Pophaly, 192 F. Supp. 3d 1335 (S.D. Fla. 2016). Florida’s non-compete statute, Section 542.335, includes a non-exhaustive list of examples of legitimate business interests, one of which is a party’s “extraordinary or specialized training.” Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, “a ‘legitimate business interest’ is an identifiable business asset that constitutes or represents an investment by the proponent of the restriction such that, if that asset were misappropriated by a competitor (i.e., taken without compensation), its use in competition against its former owner would be “unfair competition.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). Indeed, the Supreme Court of Florida has held that a “legitimate business interest is a business asset that, if misappropriated, would give its new owner an unfair competitive advantage over its former owner.” White v. Mederi Caretenders Visiting Servs. Of Se. Fla, LLC, 226 So. 3d 774 (Fla. 2017). An employer can enforce a non-compete agreement if “there [are] special facts present over and above ordinary competition such that, absent a non-competition agreement, ‘the employee would gain an unfair advantage in future competition with the employer.’” Passalacqua v. Naviant, Inc., 844 So.2d 792 (Fla. 4th DCA 2003).

Training an employee constitutes a legitimate business interest protectable by Florida law when the training rises to the level of being specialized or extraordinary. Training is classified as extraordinary when it exceeds ‘what is usual, regular, common, or customary in the industry in which the employee is employed.’” Dyer v. Pioneer Concepts Inc., 667 So. 2d 961 (Fla. 2d DCA 1996). The special training must go above and beyond “what would be common or typical in the industry.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). A business’ optional training will “not constitute a legitimate business interest sufficient to justify injunctive relief.” Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So. 2d 1097 (Fla. 5th DCA 1999). As such, Florida courts have found no legitimate business interest where an employee “was not required to attend the various training seminars and only ‘popped in and out’ of the meetings.” Autonation Inc. v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004).

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Parties generally have a duty to mitigate their damages under Florida law. A party’s “failure to mitigate” its damages is a defense commonly raised in employment litigation. “The doctrine of avoidance consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party could have avoided without undue risk, burden, or humiliation.” Graphic Associates, Inc. v. Riviana Restaurant Corp., 461 So. 2d 1011 (Fla. 4th DCA 1984). A party’s failure to mitigate its damages is an affirmative defense that can be raised by businesses against former employees. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277 (11th Cir. 2000). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The failure to mitigate is a prevalent defense in Title VII employment cases. Successful claimants bringing Title VII discrimination claims are typically entitled to backpay. Title VII specifically provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g)(1). “[I]n calculating a back pay award, the trial court must determine what the employee would have earned had she not been the victim of discrimination, and must subtract from this figure the amount of actual interim earnings.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To establish the affirmative defense of a Title VII claimant’s failure to mitigate damages, the defendant employer “must show that a claimant did not make reasonable efforts to obtain comparable work, or that comparable work was available and the claimant did not seek it out.” Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498 (S.D. Fla. 1987). Indeed, the “employer must show that the claimant failed to exercise reasonable diligence to locate other suitable employment and maintain a suitable job once it is located.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). If “an employer proves that the employee has not made reasonable efforts to obtain work, the employer does not have to establish the availability of substantially comparable employment.” Weaver v. Casa Callardo, Inc., 922 F.2d 1515 (11th Cir. 1991).

A Title VII claimant seeking front or backpay “must make a reasonable and good-faith effort to mitigate her damages.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To do so, the claimant must seek employment “substantially equivalent” to the position from which she was terminated. Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279 (M.D. Fla. 2001). “Substantially equivalent employment is employment that affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status to those available to employees holding the position from which the Title VII claimant has been discriminatorily terminated.” E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1363 (S.D. Fla. 1998). Once accepted, the claimant must also “make reasonable and good faith effort to retain the job.” Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498 (S.D. Fla. 1987).

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Respondeat superior is a common law doctrine which provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his or her employment when committing the tortious or criminal act. Many businesses find themselves involved in litigation due to the actions of their employees, whether these actions are intentional or negligent. However, because the doctrine of respondeat superior requires the conduct of the employee to have been within the scope of employment, the employer often has a valid defense to any alleged third-party or vicarious liability. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The doctrine of respondeat superior developed historically to hold the master responsible for the acts of his servant because the master alone is able to direct the servant. This liability of the master or principal is sometimes referred to as vicarious, transferred, derivative or imputed liability. Where the relationship of master-servant, principal-agent, or employer-employee exists, the doctrine is referred to as “respondeat superior.” 1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.). Therefore, the terms respondeat superior and vicarious liability are often used interchangeably when a principal or employer is sought to be held liable for the acts of an agent or employee.

However, an employer is only vicariously liable for damages resulting from the tortious acts of an employee when these acts were committed within the scope of his or her employment. This is based upon the long-recognized public policy that victims injured by the tortious or criminal acts of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. “Under the doctrine of respondent superior, an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001). For the conduct of an employee to be considered within the scope of employment, “Florida law requires that the conduct (1) must have been the kind for which the employee was employed to perform; (2) must have occurred within the time and space limits of his employment; and (3) must have been activated at least in part by a purpose to serve the employment.” Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir.1994).

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In many cases, employers or managers make statements that do not qualify as sexual harassment as a matter of law, even though the statements may be viewed as inappropriate.   To assess the best defense against an employee’s claim of sexual harassment, it is important to understand the types of sexual harassment under the law and whether the employee’s allegations qualify as a valid claim under Federal or Florida law.  One type of sexual harassment under Federal and Florida law is called “quid pro quo” sexual harassment. Florida law follows Federal law concerning whether the alleged actions constitute “sexual harassment.”

Employees can sue their current or former employers based on a quid pro quo theory of sexual harassment under Title VII of the Civil Rights Act of 1964. “Quid pro quo sexual harassment occurs when an employer alters an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). This type of claim differs from sexual harassment claims based on a hostile work environment where an employer’s conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“The gravamen of a quid pro quo sexual harassment claim is that the employer conditions an employment benefit or job status upon the employee’s submission to conduct of a sexual nature.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). To establish a prima facie case of quid pro quo sexual harassment against their current or former employer, an employee must show “(1) that [she] belongs to a protected group, (2) that [she] was subjected to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that [her] reaction to the harassment complained of affected tangible aspects of [her] compensation, or terms, conditions, or privileges of employment.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). An employer is strictly liable for quid pro quo sexual harassment by a supervisor based on the agency doctrine of respondent superior.

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The “first to breach” or “prior breach” doctrine is a commonly raised defense by employees in actions brought by their former employers to enforce restrictive covenants. Under Florida law, an employer’s prior breach of its employment contract may prohibit the employer from enforcing restrictive covenants under the same agreement. Employees typically raise the “prior breach” defense based on allegations that the former employer failed to pay wages due under their employment contract. This alleged failure to pay could constitute a material breach of the entire employment agreement and render the non-compete unenforceable. In the non-compete and trade-secret context, employers seek injunctions to stop their former employees from unlawfully competing and/or exposing confidential, trade secret information. In these situations, employers are generally barred from enforcing covenants (such as non-compete agreements or confidentiality provisions) against the employee if the material breach was based on a “dependent” covenant in the contract and the non-compete covenants are not “independent” covenants. Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

When the “prior breach” doctrine is raised as a defense, Florida courts are tasked with reviewing the subject non-compete agreements to determine whether the relevant contract provisions are dependent or independent covenants. Florida courts must construe the subject contract according to its plain language and “consider the provisions at issue in the context of the entire agreement in order to achieve ‘a reasonable construction to accomplish the intent and purpose of the parties.’” Hand v. Grow Constr., Inc., 983 So. 2d 684 (Fla. 1st DCA 2008). Whether the payment obligations under the employment agreements were dependent or independent covenants is an issue of law that turns on the proper interpretation of the contracts. Morgan v. Herff Jones, Inc., 883 So. 2d 309 (Fla. 2d DCA 2004). “Florida law limits [the] defense [of a prior breach] to ‘dependent covenants.” Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561 (Fla. 3d DCA 2010).

The general rule in Florida is that a “material breach of [a contract] allows the non-breaching party to treat the breach as a discharge of his contractual liability.” In re Walter M. Thomas, Debtor, 51 B.R. 653 (M.D. Fla. 1985). Indeed, the Supreme Court of Florida explained that “the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party.” Hospital Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181 (Fla. 1982). “Whether contractual provisions are considered dependent or independent is generally determined by the intent of the parties based on a reading of their entire contract.” Richland Towers, Inc. v. Denton, 139 So. 3d 318 (Fla. 2d DCA 2014). In Florida, covenants are generally considered dependent unless contrary language appears in the contract.

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