Can I be forced to sign a Non-compete / confidentiality agreement?

I agree with Ms. Towzey for the most part, but I do not recommend signing the agreement without it first being reviewed by counsel. You should seek the advice of counsel, and meet with counsel, before moving forward.

posted by Arthur Schofield  |  Mar 26, 2013 07:28 AM [EST]

Under Florida law, a noncompete is enforceable if it protects a company's "legitimate business interest" and is for a reasonable time period, and a reasonable geographic area. Anything 2 years or less is deemed reasonable under Florida law. The 3 years your company is demanding is NOT reasonable - but a court would likely reduce it to 2 years, not throw it out. A reasonable geographic area can be anything from 5 miles to worldwide, depending on the business. The issue is whether they have a legitimate business interest to protect in the area claimed - in other words, do that have customers and do business throughout that area. Also, they need to reasonably define the competitive activity that is being restrained. For example, if you company sells one particular specialized surgical device, then then could not restrict you from the broader area of selling any products that a medically related.

Your status of independent contractor vs employee is irrelevant to this question UNLESS as an independent contractor you signed a contact with the company for a specific period of time that cannot be earlier terminated without cause. Then, by trying to impose a noncompete now, they would be changing a term of your contract without your consent. Most people in Florida do not have such contracts, though.

If you don't have a contract as described above, then the company can say sign this or you're fired - that's perfectly legal.

You have several choices:
(1) Refuse to sign and see if they fire you
(2) Sign it as is and hope that a court wouldn't enforce if this broadly in the future
(3) Try to negotiate terms that are more palatable to you (shorter term, smaller geographic area, more narrowing described restricted activity)
(4) Have an attorney send them a letter pointing out that the scope exceeds what is permitted under the noncompete statute.

Consulting with an attorney is probably a good idea for you because an attorney may be able to come up with other options based on additional information you would provide during a consultation.

Good luck, and don't hesitate to contact me if the above is not clear, or you have other information that might affect my answer.

- Phyllis

posted by Phyllis Towzey  |  Mar 25, 2013 08:18 AM [EST]