When are Non-Compete Agreements Enforceable and What are The Defenses Against Them?

DEREK FAHEY, ESQ.

Non-compete agreements may be enforceable in Florida, and continued employment can serve as valid consideration. Even termination of employment does not automatically invalidate a restriction. Nevertheless, several defenses may prevent or limit enforcement.

1. The Employer No Longer Operates in The Restricted Business

If the employer no longer conducts the type of business or operates in the area covered by the restriction, enforcement may not be justified, provided the discontinuance was not caused by the employee’s violation.

2. No Legitimate Business Interest Exists

An employer must identify a legitimate business interest, such as trade secrets, valuable confidential information, substantial customer relationships, business goodwill, or extraordinary training.

3. The Restriction Is Unreasonable

The duration, geographic scope, and restricted line of business must be reasonable. Courts may narrow an overbroad provision rather than enforce it exactly as written.

4. The Employer Breached The Employment Agreement

If the employer materially breached the same agreement—for example, by failing to pay compensation or provide promised benefits—the employee may be relieved from contractual obligations.

5. The Information Is Publicly Available

A restriction based on alleged confidential information may fail when the information is readily available to the public or commonly known in the industry.

6. Enforcement Would Harm Public Health or Safety

Courts may decline enforcement when a restriction would create a serious shortage of qualified professionals or otherwise threaten public welfare.

The enforceability of a non-compete agreement depends heavily on its language, the employer’s actual interests, and the surrounding facts.