Can An Employer Require an Employee to Sign A Non-Compete in the Midst of Employment?

Can An Employer Require an Employee to Sign A Non-Compete in the Midst of Employment?

August 19, 2015

The use of employee restrictive covenants has been on the rise in recent years with employers requiring even low level, rank and file employees to sign them as a condition of employment.  Florida happens to be one of the more “employer friendly” states when it comes to the enforcement of non-compete agreements and other employee restrictive covenants.  Perhaps a New York appellate court found Florida’s restrictive covenant statute to be too employer favorable, calling it “truly obnoxious.”  That court did not appreciate the Florida law prohibition against taking into consideration the economic hardship that would befall a former employee if a restrictive covenant were to be enforced.

Also under Florida law, at-will employment is adequate consideration for an employee’s agreement not to compete or solicit the employer’s customers following separation.  Moreover, Florida employers are at liberty to require employees to sign restrictive covenants in the midst of their employment.  In fact, a non-compete agreement executed by an employee years after his/her initial hire date will generally be enforceable notwithstanding the absence of additional consideration other than continued at-will employment.  This is not say that a given restrictive covenant will be enforceable to the full extent of its black letter.  Employee restrictive covenants in Florida must be supported by at least one “legitimate business interest” and must not be more restrictive than necessary to protect the legitimate business interest.