The dispute at hand
A senior executive left the company last month and immediately began soliciting clients from the firm's proprietary list. The departing employee also announced plans to join a direct competitor, citing a non-compete clause that the company believes is enforceable under Florida law. The client list contains confidential contact information, pricing models, and service agreements that qualify as trade secrets. The firm has been asked to enforce the non-compete, protect the trade secrets, and negotiate a separation agreement that limits the former executive's ability to compete while avoiding exposure to wrongful-termination and FCRA claims.
Enforcing non-compete agreements in Florida
Statutory framework: Florida Statute 542.335
Florida Statute 542.335 sets out the requirements for a valid non-compete agreement. The covenant must be in writing, signed by the employee, and supported by a legitimate business interest such as trade-secret protection, customer relationships, or specialized training. The restriction must be reasonable in time, geography, and scope. In practice, a six-month to two-year duration is typical for executive positions, and the geographic radius should not exceed the area where the employer conducts business. Courts will invalidate any provision that is broader than necessary to protect the stated interest.
NLRB and FTC scrutiny of non-competes
The National Labor Relations Board has clarified that non-compete clauses do not constitute unlawful restraints on concerted activity when they are properly drafted and do not interfere with collective-bargaining rights. The Federal Trade Commission, meanwhile, has issued guidance urging greater scrutiny of non-competes that limit worker mobility, especially in low-wage sectors. While the FTC's recommendations do not directly govern executive-level covenants, they signal a trend toward tighter judicial review. Enforcement strategies in 2026 anticipate heightened scrutiny and focus on the employer's legitimate trade-secret interests.
A non-compete is enforceable only to the extent it is necessary to protect a legitimate business interest and is reasonable in duration, geographic scope, and activity restriction.
Executive separation and garden-leave negotiations
The priority in a separation agreement is to preserve the company's competitive position. A garden-leave provision pays the executive during a defined period in exchange for an agreement not to work for a competitor. The payment can take the form of a lump sum or continued salary plus benefits. Either structure gives the executive financial security and the employer an enforceable non-competition period. The agreement should also include a release of claims that covers potential wrongful-termination and FCRA allegations.
Trade-secret safeguards: FUTSA and the federal DTSA
Both the Florida Uniform Trade Secrets Act and the federal Defend Trade Secrets Act provide civil remedies for misappropriation. A client list and related data qualify as trade secrets when they derive independent economic value and are protected by reasonable confidentiality measures. The legal strategy in most cases combines a written confidentiality agreement, an immediate motion for injunctive relief, and, where the misuse continues, civil contempt actions. A separation agreement that tracks FUTSA and DTSA language gives the employer parallel state and federal claims if the former executive crosses the line.
Defending against wrongful-termination and FCRA claims
A terminated executive may allege bad faith or a Fair Credit Reporting Act violation tied to inaccurate background information. The first step in mitigation is a clean personnel file: documented performance issues, accurate background checks, and adverse-action notices delivered in the form FCRA requires. If a claim is filed, the business-justification defense rests on legitimate, non-discriminatory reasons such as a breach of the non-compete or the loss of confidential information. Communications related to the departure should be preserved before any litigation hold is even contemplated, because discovery requests almost always reach back to the date of separation.
Common questions
What makes a non-compete enforceable in Florida?
Enforceability hinges on a written, signed agreement that protects a legitimate business interest and is reasonable in duration, geographic scope, and activity restriction. The covenant must not be broader than necessary to safeguard trade secrets, customer relationships, or specialized training.
Can a garden-leave payment strengthen a non-compete?
Yes. Providing compensation during the restricted period demonstrates consideration and can make the non-compete more defensible. The payment can be structured as a lump sum or ongoing salary, and it should be clearly tied to the executive's agreement not to compete.
How does an employer respond to an FCRA claim after termination?
Verify first that any consumer report used in the decision was accurate and that the employee received the pre-adverse-action notice the statute requires. If the report holds up, the business-necessity defense usually does too. The defense lives or dies on the paper trail: the report's relevance to the job, and the audit steps taken before relying on it.
Talk to Jeffrey directly.
Every consultation request goes to Jeffrey personally. Same business-day response.