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Non-compete Provisions in Physician Employment Contracts

Florida’s enforce a less restrictive ver- From the Employee/ enforceable, if the public health, safety
Position on sion, in essence redrafting the Physician Perspective or welfare would not be served.
Non-Compete provision to fit what it For the Employee, it is hard to imag- For example, if there is a shortage of
Clauses believes to be reasonably nec- ine why it would ever be desirable to be people in a particular specialty, or in a
In Florida, non- essary to protect an employer’s subjected to a non-compete provision. particular geographic area, then the
compete agreements legitimate business interest. The potential disruption in the life of employer cannot enforce a non-com-
and other restrictive the employee/physician caused by a pete, even if all the other requirements
covenants are per- From the Employer’s non-compete provision can be burden- are met.
mitted by Florida’s Perspective some and take a heavy toll (e.g. having
non-compete statute, In most instances, the to re-locate your practice outside the Conclusion
Fla. Stat. § 542.335, Employer’s goal in demanding restricted area, possibly the need to sell Non-compete agreement provisions
so long as the restric- a non-compete provision is to your home and uproot your family, need to be evaluated on a case-by-case
tion is supported by BY CORT NEIMARK, impose limitations on where requiring children to change schools basis. The Employer, justifiably, seeks
a legitimate business ESQ. an employee can work after and spouse to change jobs). to protect the legitimate business inter-
interest. Otherwise, he/she leaves the employer in Generally, Employees try to avoid ests and good-will relationships it has
an agreement may be order to protect confidential having to enter into a non-compete established over time.
found to be void and unenforceable by a information and business relationships provision, if possible. Conversely, the Employee, also justi-
court. with patients and referral sources. These Under Florida law, the impact of a fiably, seeks to maintain maximum
The statute provides that noncompeti- are legitimate concerns for an Employer. non-compete clause on an employee’s flexibility and freedom in regard to
tion agreements must be in writing and In determining whether a particular future livelihood has no bearing upon employment options. When consider-
signed in order to be enforceable. Also, non-compete provision will be enforce- the enforceability of the clause. In ing non-compete provisions, it is pru-
when an employee challenges the validi- able, one of the first factors that busi- other words, even if a non-compete dent to seek legal advice from an attor-
ty of a non-compete clause, the employ- nesses must keep in mind is that the bur- clause prevents an employee from ney well versed in this subject area
er must show the existence of one or den of proof is on the employer who earning at his or her potential, that either before imposing restrictions, as
more legitimate business interests justi- negotiated and prepared the non-com- alone is not grounds for arguing that an employer or accepting a new posi-
fying the noncompete provision. pete agreement, not the employee who the non-compete clause should not be tion, as an employee, so that you have
Courts look at both the duration and signed it. Employers must be able to enforced. an understanding of your rights and
geographical restrictions of the non- prove that the agreement is reasonable obligations.
compete agreement. In general, the and necessary to protect its business Special Rule for Physicians
shorter a non-compete agreement lasts interests. Once that is established, the There is a specific statutory provision Cort Neimark, Esq., Partner at Lubell
and the limitation of the geographical burden shifts to the employee to prove (Florida Statute 542.335(1)(g)(4)) that Rosen, can be reached at
parameters, the easier it will be to that the agreement is overbroad or not deals with non-compete clauses in the (954) 880-9500 or
enforce. If the court finds the non-com- otherwise reasonably necessary to pro- context of medical care. It provides that cneimark@lubellrosen.com.
pete to be overbroad, the court may still tect a legitimate business interest. a non-compete provision may not be

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