Florida Senate - 2022 CS for SB 1618 By the Committee on Commerce and Tourism; and Senator Broxson 577-02260-22 20221618c1 1 A bill to be entitled 2 An act relating to restrictions on employment; 3 amending s. 542.335, F.S.; providing that restrictive 4 covenants are only enforceable against a former 5 employee, agent, or independent contractor who 6 voluntarily resigned or was terminated for misconduct 7 or failing to satisfy performance standards or goals; 8 defining the term misconduct; providing 9 applicability; providing an effective date. 10 11 Be It Enacted by the Legislature of the State of Florida: 12 13 Section 1.Subsection (3) of section 542.335, Florida 14 Statutes, is amended, and subsection (4) is added to that 15 section, to read: 16 542.335Valid restraints of trade or commerce. 17 (3)(a)A restrictive covenant is only enforceable against a 18 former employee, agent, or independent contractor who 19 voluntarily resigns, is terminated for misconduct, or does not 20 satisfy reasonable performance standards or goals which were set 21 in advance. The termination or resignation of an employee 22 following a substantial unanticipated change in market 23 conditions is not a termination for the failure to satisfy 24 reasonable performance standards or goals. A resignation 25 resulting from a constructive termination is not voluntary. 26 (b)For purposes of this subsection, the term misconduct 27 means all misconduct warranting involuntary termination, 28 regardless of whether the misconduct occurs at the workplace or 29 during working hours, and includes, but is not limited to, the 30 following, which may not be construed in pari materia with each 31 other: 32 1.Conduct demonstrating conscious disregard of an 33 employers interests and found to be a deliberate violation or 34 disregard of the reasonable standards of behavior which the 35 employer expects of his or her employee, agent, or independent 36 contractor. Such conduct may include, but is not limited to, 37 willful damage to an employers property that results in damage 38 of more than $500, or theft of employer property or property of 39 a customer or invitee of the employer. 40 2.Carelessness or negligence to a degree or recurrence 41 that manifests culpability or wrongful intent or shows an 42 intentional and substantial disregard of the employers 43 interests or of the employees, agents, or independent 44 contractors duties and obligations to his or her employer. 45 3.Chronic absenteeism or tardiness in deliberate violation 46 of a known policy of the employer or one or more unapproved 47 absences following a written reprimand or warning relating to 48 more than one unapproved absence. 49 4.A willful and deliberate violation of a standard or 50 regulation of the state by an employee, agent, or independent 51 contractor of an employer licensed or certified by the state, 52 which violation would cause the employer to be sanctioned or 53 have its license or certification suspended by the state. 54 5.A violation of an employers rule, unless the employee, 55 agent, or independent contractor can demonstrate that: 56 a.He or she did not know, and could not reasonably know, 57 of the rules requirements; 58 b.The rule is not lawful or not reasonably related to the 59 job environment and performance; or 60 c.The rule is not fairly or consistently enforced. 61 6.Committing criminal assault or battery on another 62 employee, or on a customer or invitee of the employer, or 63 committing abuse or neglect of a patient, resident, disabled 64 person, elderly person, or child in her or his professional 65 care. 66 (c)This subsection does not invalidate a covenant that 67 prohibits disclosing a trade secret of the employer to third 68 parties. 69 (d)This subsection does not apply to a restrictive 70 covenant sought to be enforced against a former employee, agent, 71 or independent contractor who is associated with the sale of all 72 or a part of: 73 1.The assets of a business or professional practice; 74 2.The shares of a corporation; 75 3.A partnership interest; 76 4.A limited liability company membership; or 77 5.An equity interest, of any other type, in a business or 78 professional practice. 79 (4)(a)Subsections (1) and (2) apply to restrictive 80 covenants entered into on or after July 1, 1996, and before June 81 30, 2022. 82 (b)Subsection (3) applies to restrictive covenants entered 83 into on or after July 1, 2022 This act shall apply 84 prospectively, and it shall not apply in actions determining the 85 enforceability of restrictive covenants entered into before July 86 1, 1996. 87 Section 2.This act shall take effect July 1, 2022.