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Scott Wagner & Associates, P.A. Florida Labor & Employment Lawyer
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The Importance of Getting It in Writing: How Non-Compete and Non-Solicitation Agreements Can Protect Florida Business Owners from Independent Contractors “Working on the Side”

EmpLaw4

Non-compete and non-solicitation agreements are valuable tools for Florida employers looking to protect their legitimate business interests. But such tools are only useful if courts are willing to enforce these agreements. And enforcing a non-compete agreement is not always as easy as you might think.

Florida Appeals Court Issues Injunction Against Photographer

Take this recent decision by the Florida Fourth District Court of Appeals, Picture It Sold Photography, LLC v. Bunkelman. In this case, a trial court refused to issue a preliminary injunction that would enforce an existing non-compete and non-solicitation agreement between a Florida employer and one of its former contractors. The Fourth District said the employer was entitled to the injunction, however, and reversed the trial judge’s ruling.

Here is some additional background on the case. The employer provides video and photography services for the real estate industry. In 2016, the employer hired an independent contractor to work as a photographer. A couple months into this arrangement, the parties signed a written agreement, which contained non-solicitation and non-compete provisions.

Essentially, the contractor agreed that while working for the employer and for two years thereafter, he would not solicit, call on, compete for, or take away any existing customers of the employer. Nor would the contractor “participate in planning for any new or existing business that is or would be similar to the business of the [employer].” The agreement further specified it applied to a limited geographic scope, i.e., the counties where the employer did business.

According to the employer, the contractor “was working on the side” and thus competing with the employer while the agreement was still in effect. The employer then sued the contractor to enforce the non-compete and non-solicitation agreement. Before the trial court, the employer sought a temporary injunction to enforce the agreement pending trial.

The contractor admitted that he “was unsatisfied with his earnings and began providing his services for some of Employer’s customers on the side without Employer’s knowledge or consent.” But the contractor argued his actions were justified, because he was promised a $60,000 salary under the agreement yet never earned that much during his time with the employer.

Although the trial judge agreed that the employer had established the contractor violated the terms of the non-compete agreement, she still declined to issue the injunction. The judge reasoned that some of the customers solicited by the contractor had said they would not hire the employer again “irrespective” of the contractor’s actions. The judge also credited the contractor’s argument that the employer “made fraudulent misrepresentations” regarding the contractor’s expected salary.

The Fourth District disagreed with the trial judge on both points. Even though “some customers testified they would not retain the Employer’s services again,” that did not change the fact that the contractor “continues to compete against Employer for business” in violation of the agreement. As for the contractor’s salary expectations, the appeals court noted the agreement itself did not actually “promise Contractor a $60,000 salary.” The contractor said the employer made oral promises on this point, but the written agreement stated it was “the entire agreement between the parties” and provided a “specific schedule of services and fees.”

Need Advice Regarding Your Own Independent Contractor Agreements?

Cases like this illustrate the importance of having written independent contractor agreements with clear provisions regarding compensation and non-solicitation of existing customers. If your business needs assistance in advice in drafting these kinds of agreements, you should speak with a qualified Florida employment law attorney right away.

https://www.floridalaborlawyer.com/retaliatory-discharge-claims-how-florida-employers-can-get-in-trouble-for-firing-injured-workers/

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* Cathleen Scott is licensed to practice in Florida only.

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