Non-Solicitation Agreements – Florida
Most employers require their employees and/or independent contractors to sign a non-solicitation agreement to protect the employer’s relationship with its customers. The goal is to prevent the employer’s former employees from soliciting customers and trying to lure those customers to the employee’s new employer/company. Non-solicitation agreements that prohibit a former employee’s solicitation of customers are generally enforceable if the employer can establish a legitimate business interest. Under Florida law, a legitimate business interest can be either the employer’s substantial customer relationship or the employer’s confidential information.
Non-Solicitation Agreements – What Does Solicit Mean?
If you signed a non-solicitation agreement that prohibits you from “soliciting” your former employer’s customers, you may have the question: “What does the term solicit mean?” This is a good question, and you may be surprised how some Florida courts have interpreted the meaning of “solicit.”
Florida courts have held that a non-solicitation provision does not necessarily preclude a former employee from contacting or servicing a former customer or client. See Advantage Digital Systems, Inc. v. Digital Imaging Services, Inc., 870 So.2d 111, 114-15 (Fla. App. 2004) (non-solicitation does not preclude contact with the third party); CHS Financial Services, Inc. v. Small Business Consultants, Inc., 722 So.2d 245 (Fla. App. 1998)(agreement that precludes direct solicitation does not prohibit the former employee from working for those customers who sought his services).
In J.K.R., Inc. v. Triple Check Tax Service, Inc., 736 So.2d 43, 44 (Fla. App. 1999), the court held that a non-solicitation provision precludes the former employees “from taking proactive steps” to obtain the employer’s clients. However, it “do[es] not disallow them from accepting former clients who actively seek their assistance.” Id. In other words, if a customer seeks out the former employee’s services, that would not be considered solicitation. See Coastal Loading, Inc. v. Tile Roof Loading, Inc., 908 So.2d 609, 612 (Fla. App. 2005)(when an employer’s customer contacted the former employee and requested his services, the former employee did not breach a covenant not to solicit); Advantage Digital Systems, Inc. v. Digital Imaging Services, Inc., supra, 870 So.2d at 115 (if a customer approaches the former employee, “that is not solicitation”); Lotenfoe, M.D. v. Pahk, M.D., 747 So.2d 422, 425 (Fla. App. 1999)(the fact that patients “voluntarily seek out a doctor” does not “prove [the physician] had solicited any of these patients”).
In Scarbrough v. Liberty National Life Ins. Co., 872 So.2d 283 (Fla. App. 2004), the court held that, whether the former client had initiated the contact with the former employee is not dispositive of whether a solicitation occurred. Id. at 285. In Scarbrough, a former employee was found to have engaged in solicitation in violation of a restrictive covenant based upon the “active involvement of [the] former employee in enticing a customer away from the prior employer.” Id. In that case, the former employee was an insurance agent who made a comparison for the client between the benefits and premiums afforded by his former and present employers. Id. The Scarbrough decision recognizes “that the term ‘solicit’ in an agreement prohibited the employee from being ‘proactive’ in [his] efforts.” Id.
Florida Non-Solicitation Lawyers
Our attorneys have successfully represented employers pursuing claims against former employees for violating non-compete and non-solicitation agreements.
We have also successfully defended employees against such claims. Pursuing or defending a claim for violation of a non-compete or non-solicitation agreement often involves complex factual and legal scenarios, including claims brought against the new employer.
Our attorneys are AV-Rated, and have successfully argued a trade secret/non-compete/non-solicitation matter before a Florida state court jury receiving a total judgment of approximately $2.4 million.
Our attorneys are licensed in all Florida state and federal courts, including the United States District Courts for the Southern, Middle and Northern Districts of Florida. To speak with an experienced Florida non-solicitation lawyer about your case, call us at 813-221-0500 or 727-500-1010. You can also reach us by email at paul@fhlawpa.com.