While non-compete agreements were once a rarity, they have become somewhat common in the modern workplace.  Issues regarding the drafting, interpretation, and enforcement of such agreements are common topics for the employment lawyers at Bogin, Munns, & Munns, P.A.  In this regard, the firm both meets with and often represents employers seeking to draft or enforce such agreements as well as the employees that are subject to same.

Generally speaking, there are numerous common misconceptions as to the legality of non-compete agreements.  Prospective clients often believe that such agreements are either always enforceable or that they are rarely enforceable.  The reality, however, is that neither is true.  The courts look to a number of factors on a case by case basis in determining whether to enforce the terms of a particular agreement.  Accordingly, getting advice from a qualified and experienced attorney regarding such agreements is certainly prudent for both affected employers and employees.

In Florida, non-compete agreements are governed by both statute and the decisions interpreting same.  In this regard, section 542.335 of the Florida statutes provides the courts with both authority and some guidance as to the enforcement of non-compete and other related restrictive covenants.  For example, as noted in such statute, such agreements must be in writing and executed by the affected employee to be valid.  They must also, generally speaking, be reasonable in scope, time, and geographic area.  However, the mere fact that an agreement may be unreasonable in one or more of these areas will not absolutely preclude enforcement as the courts are authorized to limit the application or length of the restrictive period while still enforcing same.

Additionally, it should be noted that merely having an agreement and a breach of same does not mean that the courts will enforce such agreement.  In many cases, the key issue is whether the employer seeking enforcement can articulate one or more legitimate business interests supporting such restrictive covenants.  While section 542.335 provides several examples of such legitimate business interests, it is, of course, advisable to speak to a qualified attorney as to the specific facts of your matter.

Ultimately, a dispute involving a non-compete agreement can be a costly endeavor for the affected employee, the prior employer, and even the new employer.  In addition to money damages, such claims often involve requests for injunctive relief as well.  Moreover, Florida law allows for the recovery of attorney fees by the prevailing party in litigation regarding such agreements.  Of course, prudent actions by both employers and employees can often avoid litigation, but that is not always the case.  The employment attorneys at Bogin, Munns, & Munns, P.A. can offer advice and assistance at any stage of a matter involving these agreements and have significant experience in drafting, enforcement, and defense of same.

– Joseph Shoemaker, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Shoemaker works out of the Leesburg office of the firm and welcomes questions and comments regarding the above and can be reached at jshoemaker@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.

The first part of this article discussed the economic realities test which is applied in minimum wage, overtime, and Family & Medical Leave Act cases.  If the case at issue involves, for example, race discrimination under Title VII, sex discrimination, disability discrimination, etc., then the courts apply the common law test to determine whether the worker was an employee or an independent contractor.

The elements of the common law test are: (1) the intention of the parties (i.e., did the parties intend to enter into an employee/employer relationship or did they agree to create an independent contractor relationship); (2) the skill required in the particular occupation (this element is similar to economic reality test element number four); (3) the party furnishing the equipment and the place of work (this element is similar to economic reality test element number three); (4) the method of payment, whether by time or by the job (this element is similar to economic reality test element number two); (5) the type of employment benefits provided (i.e., if the employer provides the worker with medical insurance, then this factor tends to prove employee status); (6) the manner in which the work relationship is terminated (i.e., if the worker can be terminated at-will, then that tends to prove employee status); (7) the importance of the work performed as part of the business of the employer (this element is similar to economics reality test element number six); and (8) the manner in which taxes on income is paid (i.e., if the employer deducts standard payroll taxes, then this factor tends to prove employee status).

There are subtle differences between the economic realities test and the common law test.  The critical difference is that the common law test is generally regarded as setting a slightly higher threshold to proving employee status.  However, the courts are generally in agreement that even under the common law test, both tests are designed to measure the degree of control that the purported employer exerts over the employee.  Therefore, the fact that an employer does not offer insurance benefits may have less to do with independent contractor issues and more with the fact that the employer simply does not wish to incur this cost.  Furthermore, some courts have construed an employer’s unilateral refusal to deduct payroll taxes as a condition of employment not as proof of independent contractor status but rather proof that it exercises substantial control over the worker.  Should you have any questions regarding your current arrangement, feel free to contact one of the employment attorneys at Bogin, Munns & Munns, P.A. to coordinate a consultation.

– Daniel Perez, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Perez works out of the Melbourne office of the firm and welcomes questions and comments regarding the above and can be reached at dperez@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement.

People are often surprised to learn that there are no laws that require employers to be reasonable, polite, or even fair in their decisions regarding hiring, firing, promotions, demotions, discipline, and job duties.  Employers can legally make employment decisions for good reasons, bad reasons, or even for no reason at all.  For example an employer could announce that “everyone with brown shoes on” would be terminated at the end of the day and then do just that without risk of violating any employment laws.  Of course, such an odd circumstance might make the local news, but if the employer’s true reason for making the decision was truly based on shoe color, then it would not violate the law.

A different result might be forthcoming, however, if the employees that were fired took notice of the fact that they were all white males, were all over the age of 60, or were all disabled in some fashion.  If so, then the employer may have violated one or more of the various Florida and federal laws that protect against workplace discrimination.  Such laws prohibit, among other things, discrimination in employment decisions based upon race, national origin, color, sex, disability, religion, age or marital status.

If you feel that you have suffered an act of workplace discrimination, then you are likely best suited to speak to a qualified Orlando employment law attorney as soon as is practicable.  It should be noted that most discrimination claims cannot proceed immediately to court.  Typically, the employee has to first file a complaint (termed a “charge of discrimination”) with either the federal government (the Equal Employment Opportunity Commission or “EEOC”) or the Florida government (the Florida Commission on Human Relations or “FCHR”) and allow the government an opportunity to investigate their discrimination issues.

Once a charge of discrimination is filed, the government will send a copy of the charge to the employer and will typically offer to set up a mediation (informal settlement conference) wherein an impartial person tries to assist the parties resolve their dispute prior to the government investigation.  If, however, the dispute cannot be resolved through mediation or mediation does not occur, then the government will conduct an investigation as to the alleged discrimination.  At the end of the investigation, the government will notify the employee as to its findings and will provide the employee with instructions on how to seek available remedies under the law.  Such remedies could include either an administrative hearing or a civil action in a court of law.

Of course, as with any legal claim, time is of the essence as the law limits the time that you have to file.  Generally speaking, charges of discrimination in Florida must be filed no later than 365 days from the alleged discriminatory act.  The employment attorneys at Bogin, Munns, & Munns, P.A. have handled many such claims from the initial filing all the way through to federal trial and even appellate claims.  The firm employs several experienced employment attorneys that are available for consultations and assistance at any stage of employment law proceedings.

– Joseph Shoemaker, Esq., is an attorney with Bogin, Munns, & Munns, P.A., a full service law firm with offices in Orlando, Clermont, Kissimmee, Deltona, Daytona Beach, Ocala, Melbourne, Gainesville, and Leesburg, Florida.  Mr. Shoemaker works out of the Leesburg office of the firm and welcomes questions and comments regarding the above and can be reached at jshoemaker@boginmunns.com

NO LEGAL ADVICE: This blog entry is not intended as legal advice nor should you consider it as such. It is intended only as general information.  You should not act upon this information without retaining professional legal counsel. Please keep in mind that merely subscribing to or reading this blog or otherwise contacting Bogin Munns & Munns, P.A. in the manner that you have will not establish an attorney-client relationship with our firm. Bogin Munns & Munns, P.A. cannot represent you until the firm knows there would not be a conflict of interest, and the firm determines that it is otherwise able to accept the engagement. The engagement would also be confirmed by a written agreement.