How Can I Defend Against A Non-Compete Agreement Lawsuit?
I just gave you one example with the question you asked before regarding the duration. So the first thing you would look at is the duration. The presumption is that it’s reasonable if it’s under 6 months. So if the non-compete that an employee signed who wants to get out of the non-compete and wants to challenge it on duration and it’s under 6 months, they are going to have an uphill battle. Between 6 months and 2 years there is no presumption one way or the other. So they are going to have to argue with other facts that based on those other facts and particular circumstances, that even if there is no presumption that anything over 6 months and less than two years is unreasonable in duration since there is no presumption one way or the other. If it’s over two years then that’s certainly a good strategy to allege that the non-compete is invalid due to the duration being too long.
If it’s anything over two years and the employer at that point, really I think the burden will be on the employer to prove why anything over that amount of time would be reasonable. One of the other ways to defend against the non-compete aside from attacking the duration would be to attack the scope of the non-compete and the scope can be two things. It can be geographical in nature, so the geographical scope. So, in my particular geographical area, cases have come down that have said that non-competes that say that you cannot participate in the same type of business practice as your employer either through your own work or through the hiring of yourself by another company throughout South Florida has been enforceable.
If you go to the whole state that’s probably too broad in the scope of geography. So you need to look at the scope of geography too if you are looking to attack a non-compete. Then also too, scope or the definition of scope when it comes to non-compete also can include the nature of what type of business is being restricted. So if you are, like the example I gave earlier with the property manager. So the property manager has a CAM license and is doing work for an association and the non-compete says that you can’t participate in any type of business involving real estate. So now, not only have they taken away the fact or the opportunity, I should say, of the employee to go and work for another association either through themselves or through another company that does property management. But also, let’s say the person who has the CAM license also holds a real estate license or is a licensed broker in the state of Florida.
So that’s fine, so instead of a real estate business, I’ll go work for any number of real estate companies that are out there and sell real estate. So that may be too broad in scope and I have looked up a case on that particular example but I’m kind of just giving an example of being broad in scope when trying to get out of a non-compete, you need to look and see if what’s being restricted is actually the work that are doing and if it’s the work that you were doing then you are not going to win on that front. If it includes the work you were doing but also too it excludes you from doing things that you would never do in the job that you were holding with that particular employer that you signed the non-compete with then that’s an avenue to attack the non-compete agreement.
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