Creating Enforceable Non-Solicitation Agreements

What is a Non-Solicitation Agreement?

An employee non-solicitation clause is generally included in all forms of employment contracts, including job offer letters and severance contracts. The non-solicitation clause may be included in a single provision in a broader employment contract or as a separate agreement altogether. As part of a non-solicitation agreement, an employee agrees to refrain from encouraging other c0-workers to quit their present employer or lure away clients and work for or with the employee who signed the non-solicitation agreement. Employee non-solicitation agreements in Florida are usually designed to prohibit former workers from rehiring with their former employer’s rivals or starting their own firm that does the same kind of work as their former employer.

Employers and business owners benefit greatly from non-solicitation agreements as they devote a great deal of time, money, and other resources to establishing and maintaining relationships with their clients and understand the importance to protect them. They tend to prefer signing non-solicitation agreements with their employees in order to prevent them from seeing or sharing confidential information such as a client list to entice consumers away from the organization.

However, in Florida, non-solicitation agreements can be contested if they are seen as excessively onerous or restrictive. To provide one example, a non-solicitation agreement cannot be enforced if it restricts a former employee from taking work from their former employer’s client if the client themselves has requested it. (JKR v. Triple Check Tax Service, Inc.)

If you are looking at entering into non-solicitation agreements, it is imperative for you to consult a Florida business lawyer who can ensure that the agreement is correctly designed to protect your business interests in the future. In far too many cases, a non-solicitation agreement that is supposed to be binding end up being unenforceable due to poor drafting.

How to ensure the enforceability of a Non-Solicitation Agreement?

A non-solicitation agreement, at its essence, is a restriction. Restrictive covenants are agreements that limit a person or business’s ability to accomplish something for a temporary period. Florida and other states in the United States generally oppose trade restrictions. And as a matter of principle of policy, there is a strong preference for open markets across the US. You have to carefully draft a non-solicitation agreement with this in mind. If you want your non-solicitation agreements in Florida to be valid, you must ensure that the agreement complies with all state laws. Florida Statutes govern the terms of these agreements.

  • To be enforceable in Florida, a non-solicitation clause must have a legitimate business purpose. The non-solicitation agreement may not be enforced if a judge thinks that your company strayed outside of its scope of business while drafting the agreement.
  • Furthermore, courts in Florida may be hesitant to enforce non-solicitation agreements that are unduly stringent in their terms and conditions. A valid non-solicitation agreement should have some limitations on the time frame it applies to and the geographic area covered by it. The courts usually accept two years as the time limit for these agreements.
  • Finally, your non-solicitation agreement should be very explicit and to the point in its wording, just like all other employment and commercial agreements. A non-solicitation agreement’s enforceability can often be attributed to its ambiguous wording.

Consider the unique facts and conditions of your business and the sector it operates in before implementing the non-solicitation clause. In essence, to avoid having a Florida court strike down your agreement, you must ensure that the clause is not too broad or unclear, and you must verify that such agreements are carefully drafted and suited to the unique requirements of you and the employee involved.

If you are a small business owner, non-solicitation agreements can be quite helpful. Considering this, you must verify that the draft is correctly designed and does not fall into a category of agreement that is overly restrictive. A non-solicitation agreement should only be initiated to defend the legitimate interests of the employer, and it should be tied to the protection of trade secrets, sensitive information, and unique employee and client relationships.

Important Definitions in a Non-Solicitation Agreement

There are certain critical terms in a non-solicitation agreement, and you must draft and define them correctly for successful enforcement in the future:

  • Term: A non-solicitation agreement’s term is the amount of time it is in effect. Longer durations of non-solicitation are often seen as suspicious by the courts, and you should avoid them. A time period of 2 years, as stated previously, is generally accepted.
  • Solicitation and no hire: Non-solicitation agreements can address one or both of the following issues: bringing in customers from the prior firm or recruiting co-workers from the previous employer. Top salespeople know how to lure away customers from their former employers by undercutting their current employer’s prices. Non-solicitation of customers is fair and considered enforceable by the courts, whilst the non-solicitation of workers is essentially a no-hire condition. You should be aware that no-hire clauses may be a thorn in your side if you try to enforce them in the courts. Even though an employee may violate a non-solicitation agreement if he or she leaves, you cannot stop them from working or being employed.
  • Employees covered: A no-hire clause with a blanket restriction on poaching employees is not a good idea for including in your non-solicitation agreements. The courts don’t like it, and you don’t really need it. It is unnecessary and unethical to add a no-hire clause for every employee, and you should try to avoid it. The focus on non-solicitation should be on protecting your most valuable employees, and you should focus on those who are difficult to replace. You must be able to demonstrate that the loss of these employees through solicitation will make it difficult or even impossible for you to manage your business successfully.

Contact Expert Florida Business Law Attorneys for Non-Solicitation Agreement Drafting

Effective drafting and enforceability of restricted covenants like the non-solicitation agreement require a great deal of expertise and careful consideration. You should seek the advice of experienced business law attorneys if you are looking to create a non-solicitation agreement. Contact our business attorneys to schedule a consultation.