Employees working under non-compete agreements often wonder whether they can begin working for a competitor without breaching their non-compete agreement. Many factors determine whether an employee will be found to have breached a non-compete agreement. Under Florida law, a party enforcing a non-compete agreement must establish at least one legitimate business interest. Further, there are several defenses an employee can rely on when opposing enforcement of a non-compete agreement.

In a recent post, I discussed a decision of the United States District Court for the District of Minnesota in Dentsply Int'l, Inc., et al. v. Rene, Civ. No. 13-394(DWF/JJG)(D. Minn. March 6, 2013). My prior post addressed the pitfalls of drafting a non-compete agreement too narrowly. Dentsply is also helpful because the court discusses factors it found supported the employee's claims that she did not breach the non-compete agreement. The court in Dentsply looked favorably at the way in which the employee left her employer and eventually started working for a competitor.

Dentsply manufactures and sells professional dental products. The defendant employee in Dentsply was a former sales representative who resigned from the company in June of 2012. While working for the company, the employee signed a non-compete agreement limiting her ability to compete with Dentsply for a period of two years. Opinion at *1-2.

Six months after leaving Dentsply, the employee began working for one of the company's competitors. Dentsply filed a motion for temporary restraining order seeking to enforce the non-compete agreement. Opinion at * 1. After conducting an evidentiary hearing and listening to the parties' arguments, the court found that Dentsply had not demonstrated a likelihood at success on the merits and denied the motion. Id. at *6.

In denying the employer's motion for temporary injunction, the Dentsply court made the following findings:

........after careful review of the evidence submitted and the arguments of the parties, the court finds that [the employers] have not met their burden of establishing that [the employee] has used any confidential information in her position [with her new employer.]

Opinion at * 6. In reaching its decision, the court in Dentsply relied in part on the the employee's testimony. The employee testified that when she left the employer, she left not because she wanted to work for a competitor but instead because "the corporate culture changed dramatically for the worse." Opinion at *3. The employee also testified that when she left the employer, she had no intention of returning to the dental implant industry. More important, she testified that she returned all of the employer's property and information. Id. The employee also testified that she did not take any tangible items from the employer nor did she take customer information, price lists, or other confidential information. Id.

Not all employees leaving their employer have the luxury of leaving their industry with no plans to return. Still, the employee's departure in Dentsply shows how the less an employee takes when leaving the company may support the employee's defenses should litigation ensue. Said another way, it will be difficult for an employer to claim an employee stole trade secrets if the employee can show she took nothing with her upon leaving the employer.

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