Is That "Non-Compete" Really a Customer Non-Solicitation Clause?

If you've signed — or asked an employee to sign — a Florida "Covenant Not to Compete," it's worth reading the fine print closely. A surprising number of agreements labeled as non-competes don't actually stop someone from working in their field at all. Instead, they only restrict who the person can serve after they leave: current and former customers of the company. Under Florida law, that distinction matters enormously, both for whether the clause holds up and for how a court will handle it if a dispute lands in litigation.

Here's a plain-language look at how Florida courts analyze these customer-based restraints under section 542.335, Florida Statutes, and where the common drafting pitfalls tend to show up.

Title Doesn't Control — Function Does

Florida's restrictive covenant statute allows employers to enforce agreements that restrict competition, but only if the restriction is reasonable in time, area, and line of business, and only if it's tied to a legitimate business interest the employer can actually prove up. Calling a clause a "Covenant Not to Compete" doesn't automatically mean a court will treat it as a general non-compete. What matters is what the clause actually restrains.

A clause that stops a former employee from working for a competitor, period, is a true non-compete, and it typically needs a defined geographic area to be enforceable. But a clause that only prohibits someone from serving the company's own clients — while leaving them free to compete for everyone else's business — functions more like a customer non-solicitation agreement. Florida courts have recognized that this kind of narrower restraint can survive even without a geographic boundary, because the client limitation itself does much of the work a geographic limit would otherwise do. See Env't Servs., Inc. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009).

That's good news for employers whose agreements are drafted this way — but it comes with a catch, discussed below.

Existing Clients Are Protectable. Former Clients Are a Different Story.

Section 542.335 specifically lists "substantial relationships with specific prospective or existing customers" as a legitimate business interest an employer can protect. Notice what's missing from that list: former customers.

Florida courts have picked up on that gap. Protecting a former customer relationship generally isn't treated as a legitimate business interest unless the employer can show some ongoing connection — an identifiable expectation that the customer would return with future work. A blanket restriction covering "anyone who was ever a client" doesn't automatically clear that bar. See Carter, 9 So. 3d at 1265; Evans v. Generic Sol. Eng'g, LLC, 178 So. 3d 114 (Fla. 5th DCA 2015).

That doesn't mean former-client restrictions are automatically void. Courts have upheld them where the employer proved the customers at issue were active, identifiable, with current projects or ongoing relationships — not "transient, distant clientele." Carter, 9 So. 3d at 1265. The lesson: a former-client restraint lives or dies on the employer's proof, not on the words of the contract alone.

Two drafting features tend to make this worse for employers:

- No requirement that the departing employee actually worked with the client. Some agreements sweep in the entire client roster, including accounts the employee never touched. Courts are more skeptical of restraints this broad, since they start to look less like protection of a real relationship and more like a blanket attempt to suppress ordinary competition — which Florida law does not protect. The Florida Supreme Court has been explicit that section 542.335 doesn't protect covenants whose sole purpose is preventing competition for its own sake. White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774, 785 (Fla. 2017).

- No time limit on how far back "former client" reaches. This is the bigger issue, and it's the one employers most often overlook.

The Unlimited Lookback Problem

Many of these clauses restrict service to anyone "who is or has been a client" of the company, with no cutoff date. Read literally, that could reach a client from the company's very first year in business just as easily as a client from the week before the employee's departure.

Florida courts have not been kind to that kind of open-ended reach. In an earlier case, an injunction that reached back "several years" and swept in customers the employer wasn't even actively doing business with was ordered narrowed on appeal. Shields v. Paving Stone Co., 796 So. 2d 1267 (Fla. 4th DCA 2001). Later decisions have distinguished that result where the employer could show it was protecting established, active relationships rather than a stale customer list — but the throughline is clear: the strength of the protectable interest tracks how current and substantial the relationship actually is, not the historical fact that someone was once a customer. Carter, 9 So. 3d at 1265–66; Avalon Legal Info. Servs., Inc. v. Keating, 110 So. 3d 75 (Fla. 5th DCA 2013).

If It's Overbroad, Courts Modify — They Don't Usually Just Kill It

Here's the part that surprises a lot of people on both sides of these disputes: Florida law doesn't generally let a court throw out an overbroad restrictive covenant altogether. Once the employee shows the restraint is overbroad, over-long, or not reasonably necessary, section 542.335(1)(c) directs the court to modify it — commonly called "blue-penciling" — and grant only the relief actually necessary to protect the legitimate interest. The Florida Supreme Court has confirmed that this is a command, not a discretionary option. White, 226 So. 3d at 785.

In practice, that usually means a court will narrow an unlimited former-client restriction down to customers with whom the employer can show a current or active relationship, rather than voiding the clause entirely. It also means the employer still has to do the work of identifying specific clients and proving the relationship — general references to "our client base" won't cut it.

Practical Takeaways

For employers drafting these agreements:

- If you want a customer-based restraint to hold up as broadly as possible, tie it to clients the employee actually had contact with, and put a reasonable time limit on how far back "former client" reaches.

- Don't rely on a "liberally construed in the Company's favor" clause to do the narrowing for you. It helps with interpretation, but it won't manufacture a protectable interest in stale or inactive accounts.

- Keep the duration at or under two years. Florida law presumes restraints longer than two years unreasonable, and two years leaves you with no cushion if a court is also concerned about scope.

For employees or former employees facing one of these clauses:

- Read closely whether the agreement restrains you from competing generally, or only from serving specific customers. That distinction changes the entire legal analysis.

- An unlimited "existing or former client" provision, especially one with no connection to customers you actually worked with, is one of the more vulnerable types of restraint under Florida law — but expect a court to narrow it rather than erase it outright.

- The employer's ability to enforce the clause will often turn on evidence you haven't seen yet: which accounts were truly active, and how they'll try to prove it.

Restrictive covenant litigation in Florida is fact-intensive, and outcomes can shift significantly based on the specific language of the agreement and the relationships the employer can actually document. If you're evaluating a non-compete or non-solicitation clause — whether you're the one who wrote it or the one who signed it — it's worth having it reviewed before a dispute forces the issue.

This post is for general informational purposes and does not constitute legal advice. Every agreement and every set of facts is different; if you're facing a specific non-compete or non-solicitation dispute in Florida, consult with an attorney about your situation.