Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, February 22, 2019

Can My Employer Enforce A Noncompete Agreement I Never Signed?

Many times, employees ask me if their employer can enforce a noncompete or nonsolicitation agreement they never signed. The short answer is no, at least in Florida. The Florida noncompete statute says:
(1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(a) A court shall not enforce a restrictive covenant unless it is set forth in a writing signed by the person against whom enforcement is sought.

So that's that, right? End of post.

Nah. It isn't that simple. Because probably 90% of the people who swear up and down to me that they never signed one, actually did. If you're the kind of person who signs that stack of paperwork HR put in front of you on your first day without reading, you very likely signed a noncompete or nonsolicitation agreement.

Plus, the noncompete provision might have been hidden in something that seemed innocuous like a "confidentiality agreement," "bonus agreement," or "stock option agreement." You wouldn't think something with those titles would restrict your ability to work, but trust me, they do. You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

You'll notice that the statute doesn't require the employer to sign. Even if there's a blank signature line for the employer to sign, that isn't necessarily a magic wand to get you out of the agreement. Odds are, the employer has a copy they signed after you sent your signed version back. Or they'll sign it speedy quick before they sue.

The other issue is electronic signatures. Many employers have employees do their initial paperwork online, so they click something and it says they've signed. That doesn't necessarily get you out of it either. Florida has a whole set of laws on electronic signatures. Bottom line, "Unless otherwise provided by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature." Florida has also passed the Uniform Electronic Transaction Act," which allows electronic transactions, with some exceptions. So maybe if the company messed up the electronic signature or you didn't actually check the box to sign, you have a defense.

In general, if you didn't sign a noncompete or nonsolicitation agreement in Florida, it can't be enforced. But odds are, you may well have signed and not even realized it. I'll say it again: You need to read every single thing your employer asks you to sign, before you sign it, and keep a copy.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.