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Florida Courts routinely enforce non-compete agreements to prevent a former or current employees’ improper solicitation of the business’ current and prospective employees and customers.  Such restrictive covenants, also commonly referred to as non-solicitation provision, are governed by Section 542.335, Florida Statutes. The non-solicitation provisions 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. Non-solicitation clauses are useful to protect a business’ substantial business relationships with its existing or prospective customers. As with other contractual covenants, Florida courts will interpreted interpret non-solicitation provisions under Florida law in business litigation. Peter Mavrick is a Fort Lauderdale non-compete 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.

“Generally, the intentions of the parties to a contract govern its construction and interpretation.” Waverly 1 & 2, LLC v. Waverly at Las Olas Condo. Ass’n, 242 So. 3d 425 (Fla. 4th DCA 2018). Where contractual terms are clear and unambiguous, the court is bound by the plain meaning of those terms. The intent of the parties by their use of such terms must be discerned from within the ‘four corners of the document.’”  Emerald Pointe Prop. Owners’ Ass’n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873 (Fla. 4th DCA 2008). ”Furthermore, the language being interpreted must be read in conjunction with the other provisions in the contract.”  Waverly 1 & 2, LLC v. Waverly at Las Olas Condo. Ass’n, Inc., 242 So. 3d 425 (Fla. 4th DCA 2018). ”In construing the language of a contract, courts are to be mindful that ‘the goal is to arrive at a reasonable interpretation of the text of the entire agreement to accomplish its stated meaning and purpose.’”  Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197 (Fla. 1st DCA 2015).  ”To that end, a cardinal principle of contract interpretation is that the conduct must be interpreted in a manner that does not render any provision of the contract meaningless.” Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass’n, 169 So. 3d 197 (Fla. 1st DCA 2015).

Florida courts that interpret a “solicitation” term in a non-compete agreements typically find found that the offending “solicitation” must be active, rather than passive. In Scarbrough v. Liberty Nat’l Life Ins. Co., the Florida’s First District Court of Appeal held “that the term ‘solicit’ in an agreement prohibited the employee from being ‘proactive’ in such efforts”. 872 So. 2d 283 (Fla. 1st DCA 2004). In this sense, an employee’s mere suggestion or statement to coworkers that they are starting their own business likely will not, on its own, qualify as a “solicitation” under Florida law.

In Massey Services, Inc. v. Sanders, Florida’s Fifth District Court of Appeal held that a business’ standard non-compete agreement included a non-solicitation provision that barred its employees from soliciting clients and employees. 2021 WL 742534 (Fla. 5th DCA Feb. 26, 2021). Massey then used the non-solicitation as a baseline to determine whether the business’ employees actively solicited in violation of the agreement. Massey held that the employee’s conduct did not qualify as a solicitation. Massey further held that the alleged solicitation occurred outside the time limitations prescribed elsewhere in the non-compete agreement. “To apply the time limitation only to the nondisclosure portion, which would leave the nonsolicitation portion without any temporal limitation, is illogical and unreasonable.” Massey Services, Inc. v. Sanders, 2021 WL 742534 (Fla. 5th DCA Feb. 26, 2021). Massey ultimately held that the non-solication provision was not enforceable against the former employee because “[t]here [was] no evidence in the record reflecting that [the employee] proactively sought to entice any employee to leave [the company], as is required for ‘solicitation.’” Massey Services, Inc. v. Sanders, 312 So. 3d 209 (Fla. 5th DCA 2021).

However, conduct may qualify as a solicitation if the employee offers their coworkers a position at their new business or conveys an interest to work together outside their current employment. Scarbrough v. Liberty Nat. Life Ins. Co., 872 So. 2d 283 (Fla. 1st DCA 2004). In such scenarios, a Court will typically find solicitation occurred, notwithstanding the employee’s use of vague terms that otherwise suggest future employment. Kforce, Inc. v. Mickenberg, 846 So. 2d 1190 (Fla. 4th DCA 2003). For example, in Kforce, Inc. v. Mickenberg, Florida’s Fourth District Court of Appeal ruled that a former employee solicited a customer by stating they wanted “‘to work with [the client] behind the scenes a little while’ and to ‘contact her if she could be of any assistance.’”

Peter Mavrick is a Fort Lauderdale non-compete lawyer, and represents clients in Miami, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.

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