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As noted in "The Top 5 Ways Around a Non-Compete in New York," one of the primary things that a former employer must prove in order to successfully enforce a noncompete agreement is that the former employee was encroaching on one of the business's legitmate interests.

In the last few years, I have seen with increasing frequency employers relying on generic, broad-based boilerplate agreements that try to prevent an employee from working in any field that directly competes with any aspect of "the business of the employer," or using any of the business's "proprietary marketing strategies" without any further elaboration as to what those things are.

Naturally, such vague terminology, if enforced, would put the employee at a distinct disadvantage, because they could rightfully claim that they have no idea what would be prohibited by those terms. The employee could easily be clueless as to the full range of services provided by the business. Likewise, just because you call your marketing techniques "proprietary" shouldn't (and doesn't) necessarily make it so. 

And that is precisely how a Florida appeals court in Passalacqua v. Naviant, 844 So. 2d 792 (Fla. 4th DCA 2003) held in invalidating the noncompete of a former employee who only worked at the company for 3 weeks, stating that the marketing manual the employer relied upon "was anything but a compilation of widely known and commonly used sales and marketing techniques." Id. at 796.

The takeaway here, from the employer's perspective, should be obvious:

If you actually have something that is legitmately proprietary and worth protecting, provide some detail in the noncompete agreement so that if you need to enforce it, a court should be able to glean from the face of the agreement that there is something unusual that is worthy of legal protection.

Otherwise, you, as the employer, run the risk that the Court, just like the appeals court in Passalacqua, might find that this information is unworthy of protection, and therefore, unenforceable in the context of a non-compete agreement. 

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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