Florida statute, F.S. §542.335, governs the enforcement of noncompete agreements that are subject to Florida law. While a “reasonableness” standard is employed throughout the statute, Florida’s noncompete statute is generally considered one of the most employer friendly noncompete statutes in existence. 542.335(1)(g)(1) provides that “[i]n determining the enforceability of a restrictive covenant, a court shall not consider any individualized economic or hardship that might be caused to the person against whom enforcement is sought.” Additionally, 542.335(1)(h) prohibits a court from employing any rule of contract construction that “requires the court to construe a restrictive covenant narrowly, against the restraint, or the drafter of the contract.” Both of these provisions overwhelmingly favor an employer.
Because of the lopsided nature of the noncompete statute, courts in several states have refused to enforce it because it is contrary to public policy. See Brown & Brown, Inc. v. Johnson, 25 N.Y.3d 364, 34 N.E.3d 357, 12 N.Y.S.3d 606, 2015 N.Y. Slip Op. 4876 (N.Y. 2015) (holding that Florida’s noncompete statute [Fla. Stat. § 542.335] is unenforceable and contrary to public policy in New York because the court cannot consider hardship to the employee and may not construe the statute narrowly against the employer); Unisource Worldwide v. South Central Ala. Supply, 199 F.Supp.2d 1194 (M.D. Ala. 2001) (holding that Section 542.335, Florida Statutes is contrary to public policy in Alabama and consequently unenforceable because court cannot consider hardship to employee); Brown and Brown, Inc. v. Mudron, 887 N.E.2d 437, 379 Ill. App.3d 724, 320 Ill.Dec. 293 (Ill. App. 2008) (holding that Section 542.335, Florida Statutes is contrary to public policy in Illinois for similar reasons); Carson v. Obor Holding Co., 318 Ga.App. 645, 734 S.E.2d 477 (Ga. App. 2012) (holding that choice of law provision in contract in favor of Florida law is unenforceable in Georgia because Section 542.335, Florida Statutes forbids the court from balancing interests of employer and employee when determining enforcement).
In light of the enforcement issues that can arise in foreign jurisdictions, care should be taken when drafting a choice of law provision in favor of Florida in an employment agreement containing restrictive covenants that might be litigated in a foreign court.
W Mason is an partner with the law firm Fox Rothschild LLP. W focuses his practice on litigating restrictive covenants and general business litigation matters. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.