What are the steps to properly draft a non-compete agreement for my employees in Florida?

To draft a non-compete agreement for employees in Florida, the following steps are recommended:

1. Determine the purpose and scope of the non-compete agreement:

   A non-compete agreement is a contract between an employer and an employee that restricts the employee from working for a competing business for a certain period of time and within a specific geographic area. The employer must have a legitimate business interest to protect, such as trade secrets, confidential information, customer relationships, or goodwill. The non-compete agreement should be limited to what is reasonably necessary to protect the employer's legitimate business interest, and not overly broad, unreasonable, or oppressive.

2. Include the essential terms of the non-compete agreement:

   The non-compete agreement should be in writing, signed by both parties, and include the following essential terms:

   • Identification of the parties: The full names and addresses of the employer and employee should be stated.
   • Effective date: The date when the non-compete agreement becomes effective should be stated.
   • Scope of restriction: The specific activities or types of competitive businesses that the employee is prohibited from engaging in should be stated, as well as the geographic area where the restriction applies.
   • Duration of restriction: The length of time that the restriction will apply should be stated, which should not exceed the time necessary to protect the employer's legitimate business interest.
   • Consideration: The employee should receive something of value in exchange for signing the non-compete agreement, such as a job offer, a promotion, a bonus, or access to trade secrets or confidential information.
   • Remedies: The non-compete agreement should state the remedies available to the employer in case of a breach, such as injunctive relief or damages.

3. Ensure compliance with Florida law:

   Non-compete agreements in Florida are governed by statute (Florida Statutes § 542.335) and common law, and must meet certain requirements to be enforceable. Among other things, the non-compete agreement must be reasonable in time, area, and line of business; must be supported by a legitimate business interest; and must be reasonable with respect to the employee's ability to earn a living. The employer should consult with a licensed attorney to ensure compliance with Florida law, and to review any prior non-compete agreements that may still be in effect.

4. Obtain informed consent from the employee:

   The employee must be given a reasonable opportunity to review and understand the non-compete agreement, and to ask questions or seek legal advice before signing it. The employee should acknowledge in writing that he or she has read and understood the non-compete agreement, and that he or she is entering into it voluntarily and knowingly.

5. Enforce the non-compete agreement judiciously:

   The employer should only enforce the non-compete agreement when there is a legitimate reason to do so, such as when the employee is actually competing with the employer or using confidential information to his or her advantage. The employer should not use the non-compete agreement to prevent the employee from seeking other employment or to unfairly restrict competition, as this may lead to a court invalidating the non-compete agreement or awarding damages to the employee.

In summary, drafting a non-compete agreement for employees in Florida requires careful consideration of the purpose and scope of the agreement, compliance with Florida law, obtaining informed consent from the employee, and judicious enforcement of the agreement. A licensed attorney should be consulted for further guidance and assistance.