Miami Non Compete Lawyer

Published on: October 26, 2017

NON-COMPETE LITIGATION: AN EMPLOYER’S VIOLATION OF THE FLSA COULD PREVENT ENFORCEMENT OF A RESTRICTIVE COVENANT CONTAINED IN AN EMPLOYMENT AGREEMENT

The Mavrick Law Firm regularly represents entrepreneurs who open businesses in industries in which they were formerly employed. As such, we are frequently confronted with covenants not to compete signed by the entrepreneurs when they were previously employed. The covenants not to compete, also known as restrictive covenants, typically purport to restrict the entrepreneurs from competing against their former employers for certain time periods and within a specific geographic areas. Peter Mavrick is a Miami non-compete attorney who has an excellent track record in successfully defending entrepreneurs against non-compete covenant lawsuits. In some of these cases, the entrepreneur/former employee have successfully counterclaimed based on violations of the Fair Labor Standards Act (“FLSA”) because of the former employer’s failure to pay legally required overtime or minimum wages. What the entrepreneur may not know is that not only may he or she be able to recover any wages that were not paid under the FLSA, he or she may also prevent the enforcement of a restrictive covenant by the employer.

The idea that a violation of the FLSA can prevent against a former employer’s enforcement of a restrictive covenant is rooted in two separate principles. The first principle was discussed by the Florida Fourth District Court of Appeal in Northern Trust Investments, N.A. v. Domino, 896 So. 2d 880, 882 (Fla. 4th DCA 2005), stating in pertinent part:

A party is not entitled to enjoin the breach of a contract by another, unless he himself has performed what the contract requires of him so far as possible; if he himself is in default or has given cause for nonperformance by defendant, he has no standing in equity…Having committed the first breach, the general rule is that a material breach of the Agreement allows the non-breaching party to treat the breach as a discharge of his contract liability. If the employer wrongfully refuses to pay the employee his compensation, the employee is relieved of any further obligation under the contract and the employer cannot obtain an injunction.

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Published on: October 12, 2017

NON-COMPETE AGREEMENTS CAN BE SUPPORTED BY LEGITIMATE BUSINESS INTERESTS NOT LISTED IN §542.335(B), SUCH AS PROMOTING PRODUCTIVITY AND MAINTAINING COMPETENCE

By Mavrick Law Firm

Florida’s Non-Competition Covenant Statute, Section 542.335, lays out the requirements for enforceable restrictive covenants. One of the main requirements pursuant to subsection (b) of the statute is that the party seeking to enforce the restrictive covenant must plead and prove the existence of one or more “legitimate business interests” justifying the restrictive covenant. The Miami non-compete attorneys at the Mavrick Law Firm have successfully defended start-up businesses and their owners against lawsuits seeking to enforce such covenants. Subsection (b) provides a list of potential legitimate business interests that could justify the existence a restrictive covenant, stating in pertinent part:

The term “legitimate business interest” includes, but is not limited to:

1. Trade secrets, as defined in s. 688.002(4).

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Published on: April 27, 2014

FLORIDA LAW ON NON-COMPETITION COVENANTS AND CHOICE OF LAW PROVISIONS

By Mavrick Law Firm

Florida law tends to favor enforcement of non-competition covenants. Under Florida law, non-competition covenants are enforceable if they protect one or more legitimate business interests and if they are reasonable in time, area, and line of business. In fact, Florida law explicitly forbids courts from considering “any individualized economic or other hardship that might be caused to the person against whom enforcement is sought” when determining whether a non-competition covenant is enforceable. Fla. Stat. § 542.335(g)(1).

For those reasons, companies might wish to take advantage of Florida’s non-competition laws even when the non-competition contract will be enforced outside of Florida. In those situations, companies will likely include a “choice of law” provision in their non-competition covenants. Generally, a “choice of law” contractual provision allows the parties to decide which state’s laws should apply to the contract.

Consider the following example: A Florida corporation conducts business in New York. To protect its legitimate business interests, the Florida corporation enters into a non-competition contract with its New York employee. However, New York’s laws do not favor non-competition covenants to the same extent that Florida’s laws do. New York law requires courts to consider whether the non-competition contract would impose undue hardship on the employee, a consideration that is forbidden under Florida law. To take advantage of the Florida law, the Florida corporation includes a “choice of law” provision in the non-competition contract stating that Florida law shall apply to the contract. That is exactly what a Florida corporation did in Brown & Brown, Inc. v Johnson, 980 N.Y.S.2d 631, 637 (N.Y. App. Div. 4th Dep’t 2014). The New York appellate court, however, found that New York law, not Florida law, applied to the non-competition contract notwithstanding the contract’s “choice of law” provision.

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