Richard D. Tuschman, P.A. Employment Lawyers

Clients frequently ask me about the enforceability of non-compete agreements. Some clients assume that because Florida is a right to work state, they can’t be denied their “right to work” in their chosen field.

Sorry, it doesn’t work that way. Sometimes laws don’t mean what they sound like they mean.

The right to work is a protection guaranteed by the Florida Constitution. But it has a very specific meaning. Article I, section 6 of the Florida Constitution states. “The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization.” This is what’s meant by the right to work. (Article 1, section 6 also states: “The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.”)

The right to work has no relevance to the enforceability of non-compete agreements, which are governed by section 542.335, Florida Statutes. In general, non-compete agreements are enforceable if they are reasonable in time, area, and line of business, and supported by one or more legitimate business interests. Courts will often enforce non-compete agreements under these standards, while rejecting employees’ arguments that they need to work in their chosen field to earn a living. In fact, section 542.335 states that “[i]n determining the enforceability of a restrictive covenant, a court … Shall not consider any individualized economic or other hardship that might be caused to the person against whom enforcement is sought.”

In sum, while Florida is a right to work state, this Constitutional protection is probably not significant to you unless you’re thinking about joining a labor union. The right to work does not mean that you will be able to work in your chosen field if you have signed a valid non-compete agreement with your employer. Of course, there may be legitimate defenses to the enforcement of your non-compete agreement. But they will not be found in the Florida Constitution.