Recently, I was quoted in the Tampa Bay Times in an article about a well-known St. Petersburg chef who was sued for violating the terms of her non-compete agreement. The chef, Domenica Macchia, worked briefly at a restaurant called Three Birds Tavern, then jumped ship to go work at a place called Beak’s Old Florida. Three Birds was not very happy about that and sued Macchia for breaching her non-compete agreement.
My position, in short, was that a non-compete agreement in this particular situation was absolutely absurd. Under Florida law, non-compete agreements are only unenforceable when used to protect a legitimate business interest. That means things like confidential information, trade secrets, customer relationships and extraordinary investments in an employee. In the case of chef Domenica Macchia, none of those legitimate interests existed. There were no trade secrets, like secret recipes. There were no customer relationships, because restaurants do not have exclusive relationships with their customers. And there was no extraordinary investment in Macchia’s education and training because she was a seasoned chef when she got to Three Birds and only stayed there for a few months.
Bottom line: Absent a legitimate business interest, a non-compete agreement is unenforceable. After all, Florida’s non-compete statute (542.335) is part of the Florida Antitrust Act, which deals with “combinations restricting trade or commerce.” When a non-compete agreement is not supported by a legitimate business interest, it becomes an illegal restraint of trade. In my view, that is exactly what we have in the Three Birds case. Unfortunately, the Circuit Court for the Sixth Judicial Circuit, Pinellas County, Florida disagrees with me. Last week, in a tersely worded opinion, that court granted Three Birds’ request for a preliminary injunction. The decision, remarkably, contains no discussion of Florida’s legitimate business interest test. Likewise, the decision does not address certain of the requirements for issuance of a preliminary injunction (namely that the movant be at risk of irreparable harm).
The Tampa Bay Times covered the case and the court’s recent ruling. Apparently, the case has generated strong feelings among many folks in the Tampa Bay area. There were more than 100 comments on the article, which is posted on the Times’ website. Several commenters raised the issue of Florida being a “right to work” state. In short, the argument was that the non-compete agreement must have been invalid because, after all, Florida was a right to work state.
Anybody who grew up in the 1980’s remembers the movie The Princess Bride. And anybody who remembers that movie knows where this is going. At the beginning of the movie, Vizzini, Inigo Montoya and Fezzik kidnap the princess. As they are sailing away, Inigo Montoya realizes somebody is following them. Vizzini remarks that this would be totally inconceivable. Later, when a man in black free climbs up a massive cliff to follow them, Vizzini again remarks that this is inconceivable. In response, Inigo utters one of the movie’s most well-known lines:
You keep using that word. I do not think it means what you think it means.
Exactly! I have heard the phrase “right to work” thrown around in the context of non-compete cases. The Three Birds case is an example. I have heard people say, “The chef has a right to work, doesn’t she? After all, Florida is a right to work state! “Likewise, I have heard the phrase used in connection with an employee’s allegedly wrongful termination. People have called my Fort Lauderdale office after being fired or laid off. I have had people ask me if they could sue an employer for firing them without cause because “that violates Florida’s right to work law.”
Let’s be clear: Florida’s Right to Work law (Fla. Const. Article 1, § 6) does not guarantee people the right to have a job. Instead, the Right to Work law basically prohibits companies from requiring workers to pay union dues. The Florida right to work law has absolutely no bearing on the validity of non-compete agreements.
Jonathan Pollard is a trial lawyer and litigator based on Fort Lauderdale, Florida. He focuses his practice on defending non-compete and trade secret claims. Jonathan routinely represents doctors, corporate executives and other high level employees who are switching companies, or, who have started their own ventures. Beyond litigation, Jonathan advises employees, companies and business owners regarding restrictive covenant issues in connection with employment contracts, separation agreements, hiring decisions, the purchase or sale of business interests and the execution of commercial leases. Jonathan has been interviewed about non-compete issues by reporters from INC Magazine, the BBC and The Tampa Bay Times. He is licensed in all Florida federal and state courts and routinely represents clients in Miami, Fort Lauderdale, West Palm Beach, Fort Myers, Tampa, Orlando and Jacksonville. His office can be reached at 954-332-2380. For more information, please visit For more information, visit http://www.pollardllc.com.