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only and should not be taken as a substitute for legal advice, which should be obtained from personal legal counsel. Nevertheless, the FMA hopes that the information provided here and in its other publications continues to assist physicians in answering many of their most common legal questions allowing them to treat patients, instead of addressing legal concerns. Last Update: January 2010 NONCOMPETITION CLAUSES Often overlooked in many employment contracts by employers and employees alike are noncompetition clauses, also known as restrictive covenants. These clauses, placed in the contract in order to protect the employer, usually prohibit the employee from soliciting the employer's patients when the employment relationship ceases. In addition, noncompetition clauses often prohibit the employee from practicing for a specified period of time within a certain geographic area. Obviously, while such agreements may protect the employer, they can drastically reduce the employee's ability to earn a living should the employee leave the practice for any reason, including termination by the employer. Unfortunately, however, many physicians do not contest such clauses, mistakenly believing them to be unenforceable against physicians in the State of Florida. In the case of Jewett Orthopaedic Clinic v. White, 629 So. 2d 922 (Fla. 5th DCA 1993), however, the Fifth District Court of Appeal found that such agreements against physicians would be enforced.Section 542.335, Florida Statutes, provides in general that a noncompetition agreement that is reasonable as to time, area, and line of business is valid. However, in order to be valid, a noncompetition agreement must be “reasonably necessary” to protect one or more “legitimate business interests” of the party seeking enforcement. If it can be shown that it is necessary to protect one or more “legitimate business interests,” then, absent a strong defense, the courts must give those interests appropriate protection. The statute defines “legitimate business interest” to include:1. Trade secrets.2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.3. Substantial relationships with specific prospective or existing customers, patients, or clients.4. Customer, patient, or client goodwill associated with: a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or "trade dress";b. A specific geographic location; or c. A specific marketing or trade area.5. Extraordinary or specialized training.A restrictive covenant that is not supported by a legitimate business interest is unlawful and is void and unenforceable. Passalacqua v. Naviant, 844 So. 2d 792 (Fla. 4th DCA 2003).A person seeking to enforce the restriction must plead and prove that the restraint is reasonably necessary to protect the legitimate business interest. On the other hand, the person opposing enforcement must prove that the restraint is overbroad, overlong or otherwise not reasonable to protect legitimate business interests.While “(t)he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant,” that irreparable injury is rebuttable. Section 542.335(1)(j), Florida Statutes. If the enforcing physician seeks injunctive relief, the physician must establish a legitimate business interest. Once a legitimate business interest is shown, there is presumption of irreparable injury. The burden then shifts to the breaching physician who has an opportunity to present counter evidence to prove the absence of an irreparable injury to the enforcing physician. This was exemplified in King v. Jessup, 698 So. 2d 339 (Fla. 5th DCA 1997). Here, the court held that the enforcing physician did not prove irreparable injury due to another physician’s breach of a noncompetition covenant. Furthermore, the breaching physician presented counter evidence that successfully cast doubt on the existence of any irreparable injury.In determining the enforceability of an agreement, a court may not consider any individual economic or other hardship that might be caused by the enforcement of the agreement. Section 542.335 (1)(g)1., Florida Statutes. The statute, however, does require the court to consider the effect of enforcement “upon the public health, safety, and welfare.” This section seems to reenact the holding in Damsey v. Mankowitz, 339 So. 2d 282 (Fla. 3d DCA 1976).At the same time, the court is required to consider “all other pertinent legal and equitable defenses.” Section 542.335 (1)(g)3., Florida Statutes. One of these defenses is whether the person seeking the injunction to enforce the noncompetition clause has a clear legal right to the injunction. If the person seeking to enforce the noncompetition clause has not performed what the contract requires of that person, the courts have held that he does not have the right to enjoin the breach of the noncompetition clause. Bradley v. Health Coalition, Inc., 687 So. 2d 329 (Fla. 3d DCA 1997). In other words, if an employer materially breaches an employment agreement, the employee may treat the breach as a discharge of his liabilities under the contract. Bradley. See also, Benemerito & Flores, M.D.’s P.A. v. Roche, 751 So. 2d 91 (Fla. 4th DCA 1999).In an effort to provide some guidance to both individuals and businesses, the Legislature enacted several “safe harbors.” Section 542.335(1)(d), Florida Statutes. Included among the “safe harbors” are the following rebuttable presumptions:1. In the case of a restrictive covenant sought to be enforced against a former employee, agent, or independent contractor, and not associated with the sale of all or a part of a business or an equity interest in a professional practice, a court will presume reasonable in time any restraint six months or less in duration and will presume unreasonable in time any restraint more than two years in duration.2. In the case of a restrictive covenant sought to be enforced against the seller of all or a part of a business or professional practice, a court will presume reasonable in time any restraint three years or less in duration and will presume unreasonable in time any restraint more than seven years in duration.3. In determining the reasonableness in time of a restrictive covenant predicated upon the protection of trade secrets, a court will presume reasonable in time any restraint of five years or less and will presume unreasonable in time any restraint of more than 10 years.Under former Section 542.33(2)(a), Florida Statutes, restrictive covenants entered into before July 1, 1996, generally were held to be valid within the State of Florida if they were “reasonable.” Because of the ambiguous language contained in the statute, however, it was often difficult to predict which agreements would be subsequently held valid. The statute failed to set forth any objective standards to be used to determine which agreements were “reasonable.” If a noncompetition agreement was “unreasonable”, it was held to be invalid. For this reason, restrictive covenants which prohibit future competition anywhere or in perpetuity often have been invalidated. With regard to physicians, enforcement of such covenants also will not be allowed if enforcement would jeopardize the public health. Damsey v. Mankowitz, 339 So. 2d 282 (Fla. 3d DCA 1976). For instance, if enforcement of a restrictive covenant left a community without a cardiologist, the court could find that such an agreement would jeopardize the public health, and therefore would hold the agreement invalid as against public policy.Physicians should be reminded that restrictive covenants generally will be honored within the State of Florida. Therefore, those entering into employment contracts which contain such clauses must be aware of the significant implications of these agreements, which could severely restrict a physician's ability to earn a living in the community of their choice for several years.Two statutes are applicable to noncompetition agreements. Former Section 542.33, Florida Statutes, applies to all noncompetition agreements entered into before July 1, 1996. Section