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Articles Posted in Employment Law

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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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Non-compete agreements between employers and their employees sometimes contain “forum selection clauses” that dictate where subsequent lawsuits related to the non-compete agreement can be filed. Under Florida and federal law, forum-selection clauses are presumptively valid absent a “strong showing” that enforcement would be unfair or unreasonable under the circumstances. It is important for employers to consider whether to include forum selection clauses when drafting their employment agreements because such a clause provides predictability for the employer if litigation ever arises. This is particularly true for businesses attempting to enforce non-compete agreements against former employees residing in different states. Peter Mavrick is a Fort Lauderdale business litigation lawyer, 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.

Like its federal counterpart, Florida law presumes that a contract’s forum selection clause is valid and enforceable. Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089 (Fla. 3d DCA 2011). If an employer’s non-compete agreement contains a forum selection clause, courts will first determine whether the forum selection clause is enforceable. To do this, courts must first assess whether the given clause is mandatory or permissive. Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326 (11th Cir. 2011). A mandatory clause “dictates an exclusive forum for litigation under the contract” whereas a “permissive clause authorizes jurisdiction in a designated forum but does not prohibit litigation elsewhere.” Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269 (11th Cir. 2004). Mandatory clauses are accordingly given more weight. AutoNation, Inc. v. Hall, 2019 WL 3712008 (S.D. Fla. May 29, 2019). A mandatory forum selection clause is “presumptively valid and enforceable” absent a “strong showing that enforcement would be unfair or unreasonable under the circumstances.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009).

The Eleventh Circuit Court of Appeals found that a forum selection clause can “be invalidated when: (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009). Federal and Florida courts have further found that litigants can attempt to avoid a valid forum selection clause by making an evidentiary showing that the “contractually selected forum is inconvenient.” Stewart Organization, Inc., v. Ricoh Corporation, 810 F.2d 1066 (11th Cir. 1987). Indeed, courts routinely hold that a “factor which might justify refusal to enforce a forum selection clause would be ‘if the chosen forum is seriously inconvenient for the trial of the action.’” The Bremen v. Zapata Off–Shore Co., 407 U.S. 1 (1972). However, this is a heavy burden to meet given a presumptively valid forum selection clause.

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Employees owe their current employers a duty of loyalty under Florida law. This duty of loyalty is a specific fiduciary duty that requires employees to act in the best interest of their current employers.  One example of such a breach is where an employee who starts a competing business while still working for the employer. Another example is where an employee uses its current employer’s confidential information for personal gain outside the scope of employment and without the employers’ knowledge. In these breach of loyalty scenarios, businesses may have viable causes of actions against the breaching employees and may be entitled to lost profits and other damages. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients 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 law, and other legal disputes in federal and state courts and in arbitration.

“An employee owes a duty to her employer to exercise diligence and good faith in matters relating to the employment.” Brigham v. Brigham, 11 So. 3d 374 (Fla. 3d DCA 2009). Specifically, “an employee may not engage in disloyal acts in anticipation of his future competition, such as using confidential information acquired during the course of his employment or soliciting customers and other employees prior to the end of his employment.” Insurance Field Services, Inc. v. White & White Inspection & Audit Service, Inc., 384 So. 2d 303 (Fla. 5th DCA 1980). Notably, an employee does not need to be a manager or executive with the employer to have a duty of loyalty. Fish v. Adams, 401 So. 2d 843 (Fla. 5th DCA 1981). Indeed, a business has a right to expect that its employees “will not solicit fellow employees on the job to join the employee’s competing business venture.” Terry Roberts Site Work, Inc. v. Unemployment Appeals Com’n, 908 So. 2d 592 (Fla. 5th DCA 2005). However, it is important to note that an employee’s “[a]cts consisting of mere preparation to open a competing business, such as opening a bank account or obtaining office space or telephone service ordinarily do not breach a duty of loyalty” under Florida law. Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1134 (M.D. Fla. 2007).

It is a breach of fiduciary duty for a person to misuse confidential information to the detriment of the person who he owes a duty of loyalty. See NHB Advisors, Inc. v. Czyzyk, 95 So. 3d 444 (Fla. 4th DCA 2012). “The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s damages.” Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002).  In Audiology Distribution, LLC v. Simmons, 2014 WL 7672536 (M.D. Fla. May 27, 2014), the plaintiff’s claim for breach of fiduciary duty was based on allegations that the defendants sold hearing aids and other related services to its patients by misappropriating and wrongfully utilizing confidential patient information. Audiology held the breach of fiduciary duty claim could be based on the employee’s use confidential customer information. Namely, the employee used his employer’s customer information to drive hearing aid sales for his own personal gain while still employed. The employer was entitled to damages as a result.

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A prevalent issue in Florida trade secret litigation is whether an employer adequately protected its trade secrets and confidential information. To qualify for protection under Florida Uniform Trade Secrets Act (“FUTSA”) and the federal Defend Trade Secrets Act (“DTSA”), an employer must show that it adequately maintained the secrecy of its trade secrets and confidential information. One way an employer can demonstrate these protective measures in trade secret litigation is by showing “had rules governing disclosure and confidentiality in its employee handbook.” Se. Mech. Services, Inc. v. Brody, 2008 WL 4613046 (M.D. Fla. Oct. 15, 2008). Courts also routinely find that evidence of an employer’s “password restricted” computer systems “are sufficient for the Court to draw a reasonable inference that the Plaintiffs took reasonable steps to protect the secrecy of their trade secrets.” Fortiline, Inc. v. Moody, 2013 WL 12101142 (S.D. Fla. Jan. 7, 2013). Florida courts will afford trade secret protection to an employer’s confidential information even if the employer does not require its employees to sign confidentiality agreements. Coihue, LLC v. PayAnyBiz, LLC, 2018 WL 7376908 (S.D. Fla. Feb. 6, 2018). Peter Mavrick is a Fort Lauderdale trade secret attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida.  The Mavrick Law Firm represents corporations and their owners in business litigation, non-compete agreement litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

A confidentiality agreement is merely a method by which a confidential relationship may be established.  There are many other ways that this confidential relationship can be created.  For example, Dotolo v. Schouten held a confidential relationship was formed where a person disclosed confidential information to a potential business partner. 426 So. 2d 1013 (Fla. 2d DCA 1983).  Dotolo found:

The [recipients] were instructed that the formula was a trade secret and that the [disclosing party] wished to protect it. The lack of any express agreement on the part of the appellees not to use or disclose [the disclosing party’s] trade secret is not significant. The existence of a confidential relationship such as that in this case gives rise to an implied obligation not to use or disclose.

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The Americans With Disabilities Act (ADA) prohibits discrimination by an employer “against a qualified individual on the basis of disability” in any of the “terms, conditions, and privileges of employment.”  42 U.S.C. § 12112(a).  The United States Court of Appeal for the Eleventh Circuit in Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir. 2007), explained that to establish a prima facie case under the ADA requires a plaintiff to show that, at the time of the adverse employment action, he or she had a disability, he or she was a qualified individual, and he or she was subjected to unlawful discrimination because of his or her disability.  Peter Mavrick is a Fort Lauderdale employment lawyer. The Mavrick Law Firm also represents clients in business litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, and other legal disputes in federal and state courts and in arbitration.

In 2008, Congress made significant changes to the ADA by enacting the ADA Amendments Act of 2008, Pub.L.No. 110-325,122 Stat. 3553.  These amendments indicate that an extensive analysis is not required to determine whether an individual’s impairment is a disability under the ADA.  The ADA, at 42 U.S.C. § 12102(1), defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of an individual; “a record of such an impairment,” or “being regarded as having such an impairment.”  Major life activities include, but are not limited to, “sleeping, walking, standing, lifting, … [and] bending.”

Under the ADA, a “qualified individual” is “an individual who, with or without a reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  42 U.S.C. § 12111(8).  A great deal of employment litigation under the ADA is over the term “reasonable accommodation,” including whether “reassignment” constitutes a reasonable accommodation.  When an employee seeks reassignment as a reasonable accommodation for a disability, the relevant question when deciding whether he or she is a qualified individual is not whether the employee is qualified for his or her current position, but whether he or she is qualified for the new job.  For example, in Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11th Cir. 2001), the federal appellate court examined the essential functions of the new position, not the old one, to determine whether the employee was qualified within the meaning of the ADA.  The question sometimes arises in ADA litigation whether the ADA mandates preferential treatment for disabled persons who seek reassignment of their positions.  Federal courts refer to such preferential treatment as “noncompetitive reassignment.”

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Commercial contracts often contain dispute resolution provisions requiring the contracting parties to resolve all claims arising between them through arbitration. However, arbitration provisions are not automatically valid and enforceable under Florida law. The arbitration provision must provide the potential claimants with the same legal remedies that are otherwise available to them in civil litigation. “Although parties may agree to arbitrate statutory claims, even ones involving important social policies, arbitration must provide the prospective litigant with an effective way to vindicate his or her statutory cause of action in the arbitral forum.” Romano ex rel. Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003). In business litigation, litigants often attempt to compel arbitration based on arbitration provisions, to avoid litigating in civil court where discovery is generally broader than arbitration.  Peter Mavrick is a Miami business litigation lawyer, and also represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in arbitration matters, 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.

Parties will typically file a motion to compel arbitration to avoid litigating in civil court where discovery is generally broader than arbitration. “In ruling on a motion to compel arbitration, the trial court is limited to three inquiries: ‘(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’” Romano ex rel. Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). “The arbitrability of claims rests on the assumption that the arbitration clause permits relief equivalent to court remedies. When an arbitration clause has provisions that defeat the remedial purpose of the statute, therefore, the arbitration clause is not enforceable.” Paladino v. Avnet Comput. Techs., Inc., 134 F.3d 1054 (11th Cir. 2001). The recovery of prevailing party attorneys’ fees is an important remedy available to litigants under many remedial statutes in Florida. See, e.g., Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.2105 (“In any civil litigation resulting from an act or practice involving a violation of this part . . . the prevailing party . . . may receive his or her reasonable attorneys’ fees and costs from the non-prevailing party).

Florida courts routinely hold that,“[w]hen an arbitration agreement contains provisions which defeat the remedial provisions of the statute, the agreement is not enforceable.” Flyer Printing Co. v. Hill, 805 So. 2d 829 (Fla. 2d DCA 2001). In Flyer Printing Company, the Second District Court of Appeals ruled an arbitration provision was unenforceable because “[n]either party was entitled to attorneys’ fees in arbitration.” 805 So. 2d 829 (Fla. 2d DCA 2001). In Hernandez v. Colonial Grocers, Inc., the United States Court of Appeal for the Eleventh Circuit held that “a[n] arbitration agreement containing provisions that defeat a federal statute’s remedial purpose is still not enforceable. 124 So. 3d 408 (Fla. 2d DCA 2013). In Paladino v. Avnet Computer Technologies, Inc., the Eleventh Circuit refused to enforce arbitration provision because the clause “deprive[d] an employee of any hope of meaningful relief, while imposing high costs on the employee, [and] undermine[d] the policies that support Title VII.” 134 F.3d 1054 (11th Cir. 2001).

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Employees (current and former) can sue their employers for race and gender discrimination and hostile work environments under the Florida Civil Rights Act (the “FCRA”). The FCRA was patterned after 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). Therefore, 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, 1271 (11th Cir. 2010).  Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

An employee suing under FCRA or Title VII can establish their race and gender discrimination claim with either direct or circumstantial evidence. See, e.g., Mathis v. Wachovia Bank, 255 F. App’x 425, 429 (11th Cir. 2007). To establish a prima facie case of discrimination under FRCA or Title VII, employees must show that: (1) they were a member of a protected class defined by race or gender; (2) they were qualified for the job; (3) they suffered an objectively serious adverse job action; and (4) they were treated less favorably than a similarly-situated individual. See Maynard v. Board of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). An adverse action is objectively serious if it is “tangible enough to alter [the employee’s] compensation, terms, conditions, or privileges of employment.” See Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir. 2004). “The Supreme Court has stressed that Title VII provides no protection against ‘those petty slights or minor annoyances that often take place at work and that all employees experience.’” Harrison v. Belk, Inc., 748 F. App’x 936, 943 (11th Cir. 2018). Florida law provides that individuals who were allegedly treated better—known in legal speak as “comparators”—must be “similarly situated in all material respects.” Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir. 2019) (en banc) (emphasis added). In other words, the “comparator” must have “engaged in the same basic conduct (or misconduct) as the plaintiff” and that they “‘cannot reasonably be distinguished.’” Id. at 1227-28.

Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by giving a legitimate and non-discriminatory reason for the challenged adverse action. The burden then shifts back to the plaintiff after defendant establishes a non-discriminatory reason. The plaintiff then must prove with “significantly probative evidence” that the asserted reason for the adverse job action was merely a pretext for discrimination. Brooks v. County Commission of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). To sufficiently demonstrate “pretext,” a plaintiff may not simply “quarrel with the wisdom of the employer’s reason; instead, as long as the reason ‘is one that might motivate a reasonable employer” to do what it did, the plaintiff “must meet that reason head on and rebut it.’” See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). A reason cannot be found a pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

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Florida law sets forth detailed statutory rules governing enforcement of restrictive covenants, commonly known as “non-compete agreements.”  Florida Statutes, section 542.335, provides that parties may agree to restrict or prohibit competition in certain circumstances, so long as they protect one or more legitimate business interests and are reasonable in geographic and temporal scope.  In determining whether to enforce a non-compete agreement, Florida courts assess whether enforcement of the non-compete will ultimately protect against unfair competition.  Under Florida law, set forth in F.S. § 542.335(1)(h), “[a] court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement.”  Peter Mavrick is a Miami non-compete attorney, and also advocates for clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in business litigation, trade secret litigation, non-compete agreement litigation, employment litigationtrademark litigation, and other legal disputes in federal and state courts and in arbitration.

In the recent appellate decision GFA International, Inc. v. Trillas, 2021 WL 3889283 (Fla. 3d DCA 2021), Miami’s Third District Court of Appeal reversed a trial Judge’s decision to deny an injunction against a former employee who was competing against the employer.  The appellate court took the extraordinary measure of remanding the case to the trial court for entry of a temporary injunction in favor of the employer.  The employer, GFA International, Inc. (GFA), was an engineering company that had hired Eric Trillas (Trillas) to serve as its inspections manager.  GFA promoted the employee to branch manager of its Miami location, and he managed the day-to-day operations of the branch including overseeing marketing, sales, finances, and helping bring in new clients and work for GFA.  Trillas was in charge of the facility support services department, which provided post storm engineering consulting, assisted with developing marketing materials, advertised GFA’s post hurricane marketing services, and brought in clients for post storm-related services.

During his employment, Trillas signed a restrictive covenant that prohibited during his employment, and for two years thereafter, (1) any direct or indirect competition against GFA and (2) accepting any business from any of GFA’s existing or prospective customers.  Trillas also contractually agreed to refrain, during his employment and for two years post-termination, from soliciting GFA’s GFA’s existing and prospective clients.  Aside from Florida’s restrictive covenant statute governing an employee’s competitive acts against his or her employer, Florida common law also prohibits an employee’s competition during the employment relationship.  Under Florida law, an employee may not engage in disloyal acts in competition against his or her employer, and this includes disloyal acts in anticipation with competition against his or her employer.”  Fish v. Adams, 401 So.2d 843 (Fla. 5th DCA 1981).  The case facts indicated that Trillas violated both his statutory non-compete duties as well as his common law duties barring competition against his employer GFA.

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