Florida Senate - 2022                                    SB 1618
       
       
        
       By Senator Broxson
       
       
       
       
       
       1-00675A-22                                           20221618__
    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 because of
    7         misconduct; defining the term “misconduct”; providing
    8         applicability; providing an effective date.
    9          
   10  Be It Enacted by the Legislature of the State of Florida:
   11  
   12         Section 1. Subsection (3) of section 542.335, Florida
   13  Statutes, is amended, and subsection (4) is added to that
   14  section, to read:
   15         542.335 Valid restraints of trade or commerce.—
   16         (3)(a) A restrictive covenant is only enforceable against a
   17  former employee, agent, or independent contractor who
   18  voluntarily resigns or is terminated because of misconduct. A
   19  resignation resulting from a constructive termination is not
   20  voluntary.
   21         (b) For purposes of this subsection, the term “misconduct”
   22  means all misconduct warranting involuntary termination,
   23  regardless of whether the misconduct occurs at the workplace or
   24  during working hours, and includes, but is not limited to, the
   25  following, which may not be construed in pari materia with each
   26  other:
   27         1. Conduct demonstrating conscious disregard of an
   28  employer’s interests and found to be a deliberate violation or
   29  disregard of the reasonable standards of behavior which the
   30  employer expects of his or her employee, agent, or independent
   31  contractor. Such conduct may include, but is not limited to,
   32  willful damage to an employer’s property that results in damage
   33  of more than $500, or theft of employer property or property of
   34  a customer or invitee of the employer.
   35         2. Carelessness or negligence to a degree or recurrence
   36  that manifests culpability or wrongful intent or shows an
   37  intentional and substantial disregard of the employer’s
   38  interests or of the employee’s, agent’s, or independent
   39  contractor’s duties and obligations to his or her employer.
   40         3. Chronic absenteeism or tardiness in deliberate violation
   41  of a known policy of the employer or one or more unapproved
   42  absences following a written reprimand or warning relating to
   43  more than one unapproved absence.
   44         4. A willful and deliberate violation of a standard or
   45  regulation of the state by an employee, agent, or independent
   46  contractor of an employer licensed or certified by the state,
   47  which violation would cause the employer to be sanctioned or
   48  have its license or certification suspended by the state.
   49         5. A violation of an employer’s rule, unless the employee,
   50  agent, or independent contractor can demonstrate that:
   51         a. He or she did not know, and could not reasonably know,
   52  of the rule’s requirements;
   53         b. The rule is not lawful or not reasonably related to the
   54  job environment and performance; or
   55         c. The rule is not fairly or consistently enforced.
   56         6. Committing criminal assault or battery on another
   57  employee, or on a customer or invitee of the employer, or
   58  committing abuse or neglect of a patient, resident, disabled
   59  person, elderly person, or child in her or his professional
   60  care.
   61         (c) This subsection does not invalidate a covenant that
   62  prohibits disclosing a trade secret of the employer to third
   63  parties.
   64         (d) This subsection does not apply to a restrictive
   65  covenant sought to be enforced against a former employee, agent,
   66  or independent contractor who is associated with the sale of all
   67  or a part of:
   68         1. The assets of a business or professional practice;
   69         2. The shares of a corporation;
   70         3. A partnership interest;
   71         4. A limited liability company membership; or
   72         5. An equity interest, of any other type, in a business or
   73  professional practice.
   74         (4)(a) Subsections (1) and (2) apply to restrictive
   75  covenants entered into on or after July 1, 1996, and before June
   76  30, 2022.
   77         (b) Subsection (3) applies to restrictive covenants entered
   78  into on or after July 1, 2022 This act shall apply
   79  prospectively, and it shall not apply in actions determining the
   80  enforceability of restrictive covenants entered into before July
   81  1, 1996.
   82         Section 2. This act shall take effect July 1, 2022.