An employer has a legitimate business interest in prohibiting an employee from soliciting customers whom the employer has a substantial relationship.  Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So.3d 957, 31 IER Cases 1014 (Fla. App. 2010) , citing Brown & Brown, Inc. v. Ali, 494 F.Supp.2d 943 (N.D. Ill. 2007) (applying Florida law).  Likewise, “the right to prohibit the direct solicitation of existing customers is a legitimate business interest, and a covenant not to compete which includes a non-solicitation clause is breached when a former employee directly solicits customers of his former employer.”  Atomic Tattoos, LLC v. Morgan, 45 So.3d 63 (Fla. App. 2010) quoting Dyer v. Pioneer Concepts, Inc., 667 So.2d 961 (Fla. App. 1996).

Initiation of Contact by Customer – Contract Specific Analysis

An employer has a legitimate protectable business interest in prohibiting solicitation of its customers with whom the employee has a substantial relationship. Hilb Rogal & Hobbs of Florida v. Grimmel, 16 So.3d 167 (Fla. App. 2009), citing Scarbrough v. Liberty National Life Insurance Co., 872 So.2d 283, 285 (Fla. 1st DCA 2004). The right to prohibit the direct solicitation of existing customers is a legitimate business interest, and a covenant not to compete which includes a nonsolicitation clause is breached when a former employee directly solicits customers of the former employer. Id.

In J.K.R., Inc. v. Triple Check Tax Service, Inc., 736 So.2d 43, 44 (Fla. 1st DCA 1999), the court held that a non-solicitation provision precludes the former employees “from taking proactive steps” to obtain the employer’s clients. However, it “do[es] not disallow them from accepting former clients who actively seek their assistance.” Id. Notably, the covenant at issue in J.K.R. prohibited the former employee from “calling upon, soliciting, or taking away” clients.

On the contrary, in Scarbrough v. Liberty Nat. Life Ins. Co., 872 So. 2d 283, 284 (Fla. 1st DCA 2004), the 1st DCA held that solicitation can occur where the customer seeks out the former employee. Further, in Hilb, the Fifth District held that an employer has a legitimate business interest in customer relationships even if the employer’s customers elect on their own to end their relationship with the employer and start a business relationship with the departing employee where the contractual restrain prevented customer contact in addition to solicitation. Likewise, in Environmental Services, Inc. v. Carter, 9 So.3d 1258 (Fla. App. 2009) , the Fifth District recognized that solicitation by an employee can exist in violation of a non-compete agreement “regardless of whether the customer or employee initiated the transaction.”  Envtl. Servs., 9 So. 3d at 1266.

In sum, if a contractually specified restrain only prohibits solicitation, some Florida case law suggests that the restrain has not been violated if the customer seeks out the former employee. However, where the contractually specified restrain prohibits the former employee from communicating with, servicing, or anything more with the former customer, the restraint is likely enforceable and can be breached regardless of whether the customer initiates contact with the former employee.


W Mason is a partner with Fox Rothschild LLP and serves in the Firm’s Litigation and Financial Services Industry departments in Fox Rothschild’s West Palm Beach office. An accomplished business trial attorney, W represents both plaintiffs and defendants in state and federal courts in employment disputes involving restrictive covenants, shareholder disputes, contract disputes, banking litigation, fraud claims, Uniform Commercial Code (UCC) claims, and other commercial disputes.

 

As of January 12, 2021, Palm Beach County’s equal employment ordinance has been amended to cover smaller businesses.    Companies in Palm Beach County with between 5 and 14 employees (Federal and State civil rights acts normally cover companies with 15 or more employees) will now have to comply with the County’s equal employment ordinance.

Palm Beach County’s equal employment ordinance is also broader than the Florida Civil Rights Act and covers discrimination based on an individual’s race, color, religion, sex, national origin, age, disability, familial status, marital status, sexual orientation, gender identity or expression or genetic information.   Employees in Palm Beach County covered by the expanded ordinance will now have an avenue to file a charge of discrimination with the County’s Office of Equal Opportunity (“OEO”).  The OEO will undertake an investigation or conciliation efforts in much the same way that the Equal Employment Opportunity Commission (“EEOC”) operates.

Palm Beach County’s expansion of its equal employment ordinance brings the County in line with Broward and Miami-Dade Counties which already had equal employment ordinances that covered smaller employers.

For small businesses, the EEOC provides a resource center with helpful information and guidance for ensuring that your business is in compliance with applicable anti-discrimination laws.

 


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

While it likely will be some time before most working age Floridians can get a COVID19 vaccine, since the roll out has been nothing but chaos, employers should start to thinking about their vaccine plan.   The Equal Employment Opportunity Commission (“EEOC”) issued guidelines for COVID19 vaccines in late December 2020.

Please see this helpful alert for more information.

As I previously posted , Florida’s new $15 minimum wage (passed by voters) has to go through a legislative implementation process which may exclude certain businesses or certain employees.

And, I’m already hearing news that small businesses and business lobby groups are pushing back on Amendment 2 due to the COVID19 pandemic.  Specifically, businesses are arguing that because of COVID19 closures and restrictions on operations, in addition to high unemployment in Florida, any increase in minimum wage pursuant to Amendment 2 should be delayed.   Businesses also point out that with the economy in disarray due to the pandemic, now is a difficult time to be raising prices for customers who may also be struggling.

Supporters of Amendment 2 argue that since the raise is incremental, $1 a year, businesses should have time to adjust to the increase.   Supporters of increased minimum wage also argue that increasing minimum wage permits those employees to spend more on goods and services thereby stimulating the economy.  Low wage workers tend to spend a much larger percentage of their wages in their local communities.

Amendment 2 passed with 61% voter approval which demonstrates high approval by the Florida voters.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

I recently posted about Florida’s new minimum wage law, passed by voters as Amendment 2 during the November 2020 general election.  As I noted in my earlier post, Amendment 2 (which calls for a gradual increase to a $15 minimum wage in Florida) is supposed to begin with an increase to a $10 minimum wage beginning on September 30, 2021.  Please note that Florida’s legislature will create regulations to implement Amendment 2 which may change who is covered by same.

As a result, employers need to be aware of the annual increase of Florida’s minimum wage which is triggered by Florida Statute § 448.110, and will increase Florida’s minimum wage separate and apart from Amendment 2.  Accordingly, come January 1, 2021, Florida’s minimum wage will rise from the current rate of $8.56 per hour to $8.65 per hour.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region.  Based upon this year’s calculation, Florida’s new minimum wage for 2021 will rise by nine (9) cents.

 

Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage.  However, the employer must pay tipped employees a direct wage.  The direct wage is calculated as equal to the minimum wage $8.65 minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.63 as of January 1, 2021.

The photo in this post is of the Surf Board Christmas Tree in Palm Beach, Florida (photo by me).


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

Florida voters once again showed their approval for a progressive ballot initiative.  Florida’s Amendment 2, which proposed a gradual increase of Florida’s minimum wage to $15 an hour, received more than 60% approval by voters and therefore passed on November 3, 2020.  Amendment 2 received 60.8% of the vote, which was considerably more than President Trump who received 51.2% voter approval in Florida.

Florida’s Amendment 2 will increase Florida’s minimum wage from $8.56 an hour to $10 an hour beginning on September 30, 2021.  Thereafter, Florida’s minimum wage will increase by $1 an hour per year until it reaches $15 an hour.  The federal minimum wage is currently at $7.25 per hour.

 

While its a tradition for Florida voters to pass progressive ballot initiatives, it also is a tradition for Florida’s Republican controlled state legislature to defang those initiatives.   As such, Florida businesses will have to wait and see how Florida’s state legislature defines “employer” and “employee” and whether the legislature moves to exempt certain industries or make other efforts to reduce the coverage of Amendment 2.

 


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

As of October 1, 2020, the eviction/foreclosure ban in place since April has been lifted by Florida’s Governor.   See my post for more.

 


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

Governor Ron DeSantis has extended his narrowed eviction/foreclosure ban, due to COVID19 for another month.  See my post for more.

 


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

Florida finally issues regulations that permit the sale of edible cannabis products.  See my post at Fox’s In the Weeds.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Governor  Ron DeSantis has extended, but narrowed, the eviction/foreclosure ban related to COVID-19.  See my post for more.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.