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Court of Appeals: Florida Choice-of-Law in Non-Solicitation Agreement is Unenforceable

Jun 13, 2015

Last week, we wrote an article about some recent developments regarding partial enforcement of restrictive covenants:  New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.  The article was primarily based upon a Fourth Department case of Brown & Brown, Inc. v. Johnson, a case that was recently argued at the New York Court of Appeals.  The Court of Appeals has now decided the case.  You can read the decision here.

Although partial enforcement under New York law was one of the issues under review, the threshold issue addressed by the Court of Appeals was whether or not to apply a Florida choice-of-law provision.  The Appellate Division held that New York law should apply, and the Court of Appeals affirmed that part of the ruling.  After an extensive review, comparing the laws of the two states on this issue, the Court held:

Considering Florida’s nearly-exclusive focus on the employer’s interests, prohibition against narrowly construing restrictive covenants, and refusal to consider the harm to the employee–in contrast with New York’s requirements that courts strictly construe restrictive covenants and balance the interests of the employer, employee and general public–defendants met their “‘heavy burden’ of proving that application of Florida law [to the non-solicitation provision of the parties’ agreement] would be offensive to a fundamental public policy of this State.”

There have been a number of occasions where we have reviewed non-compete agreements containing choice-of-law provisions from Florida or other more “employer-friendly” states.  From now on, it seems very unlikely that such a provision would be enforced absent some significant distinguishing set of circumstances.  Employers wishing to enforce restrictive covenants in New York should narrowly tailor them to meet the requirements for enforceability under New York law.

On the issue of partial enforcement, the Court of Appeals reversed the decision of the Appellate Division.  But, the Court did so because it believed there were issues of fact that raised questions about whether the employer engaged in overreaching or used coercive dominant bargaining power to obtain the restrictive covenant at issue.  That issue was remanded back to the lower courts for further proceedings.  Partial enforcement is not assured, and employers should be concerned about the apparent trend by courts to decline to partially enforce over-broad restrictive covenants. To learn more about this trend, please read New York Employers Could Soon Have More Difficulty Enforcing Restrictive Covenants.  

If you would like to schedule a consultation to talk about restrictive covenants in employment,  please feel free to contact Peter Weishaar at pweishaar@mccmlaw.com or (585) 512-3542.  Peter also writes a law blog, the Rochester Law Review, covering legal developments, cases of interest, and events happening in all of the key areas of his practice.  You can follow the blog on Facebook and Twitter.

Peter's employment practice includes the representation of businesses and individuals in matters involving restrictive covenants, non-compete agreements, discrimination and failure to pay wages in State and Federal Courts, and before administrative agencies, including the New York State Division of Human Rights and the United States Equal Employment Opportunity Commission.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.