Florida Non-Solicitation Agreements After the FTC Noncompete Rule

## The FTC Rule Is Not a Current Nationwide Ban

The Federal Trade Commission adopted a rule in 2024 that would have broadly restricted worker noncompetes, but a federal court set the rule aside before its scheduled effective date. As a result, employers should not assume that a nationwide FTC ban currently invalidates Florida non-solicitation agreements. Federal enforcement policy and litigation can change, so current authority should be checked when action is contemplated.

Non-solicitation provisions may restrict solicitation of customers, prospective customers, referral sources, vendors, or employees. Whether a clause functions like a noncompete depends on its language and practical effect.

## Florida's Statutory Framework

Florida Statutes section 542.335 generally permits enforcement of a written restrictive covenant signed by the person against whom enforcement is sought. The party seeking enforcement must plead and prove one or more legitimate business interests justifying the restriction. Recognized interests include trade secrets, valuable confidential information, substantial relationships with specific customers or prospects, customer goodwill, and extraordinary or specialized training.

The restriction must be reasonably necessary to protect those interests. Once the enforcing party makes the required showing, the restrained party may demonstrate that the scope is overbroad, overlong, or otherwise unnecessary. Florida courts may modify an excessive covenant rather than reject it entirely.

## What Courts Examine

A customer non-solicitation clause is more defensible when tied to customers with whom the worker had material contact or about whom the worker received protected information. Restrictions covering every customer worldwide, including unknown customers, invite challenges. Employee non-solicitation provisions require their own legitimate-interest analysis and should define prohibited conduct clearly.

Courts distinguish active solicitation from merely accepting unsolicited business based on contract wording and evidence. Terms such as solicit, divert, interfere, and provide services should not be treated as interchangeable. Social-media announcements, targeted messages, and coordinated departures can raise fact-intensive questions.

## Practical Enforcement Considerations

Employers should identify the specific interest at risk before sending a demand letter. Preserve access logs, downloads, customer communications, and evidence of relationships without unlawfully accessing personal accounts. Workers should inventory continuing obligations before departure, return company information, and avoid using remembered or copied confidential data. Because injunction proceedings move quickly, both sides should obtain counsel before communications or evidence disappear. ## Building a Defensible Process

Legal compliance is easier to demonstrate when decisions are supported by contemporaneous records. Organizations and individuals should identify who owns each task, what information must be collected, when review occurs, and where final documents are retained. A policy that exists only in a handbook may offer little protection if actual practices differ. Periodic audits can reveal inconsistent forms, outdated language, missed deadlines, or informal procedures that have become routine without legal review.

Templates should be treated as starting points rather than substitutes for analysis. The governing rule may depend on location, timing, contractual language, the people involved, and facts that are not obvious at the beginning. When several jurisdictions are implicated, the most protective applicable rule may provide a practical baseline, but counsel should confirm whether separate notices, elections, or procedures remain necessary.

## When to Involve Counsel

Early advice is often less expensive than correcting a completed transaction or defending a claim. Counsel can help preserve evidence, identify privilege issues, evaluate competing interpretations, and distinguish a business preference from a legal requirement. Urgent review is especially appropriate when a deadline is approaching, a government agency has made contact, litigation is threatened, substantial assets are involved, or the parties disagree about their rights.

Readers should also verify that cited rules remain current. Statutes, regulations, agency guidance, and judicial decisions change, sometimes with transition periods or unresolved appeals. This article provides general educational information and is not legal advice for any particular matter.

## Practical Takeaways

- Create a written checklist identifying the responsible person, required documents, and applicable deadlines. - Preserve signed agreements, notices, communications, calculations, and evidence supporting important decisions. - Review forms and policies after significant legislation, agency guidance, or appellate decisions. - Do not assume that a federal rule displaces stricter state or local requirements. - Obtain fact-specific legal advice before acting when the financial or litigation risk is meaningful.