Trump needed non-competes when Epstein 'stole' his spa workers | Opinion

President Trump's most recent explanation earlier this week for his estrangement from convicted pedophile sex trafficker Jeffrey Epstein around 20 years ago compounds the confusion, uncertainty, and possible mendacity of his prior remarks.

The president's latest account du jour, uttered to reporters during his return from his fairly successful venture to Scotland, is that he ended his longtime friendship Epstein because the latter "stole" some workers at his Mar-a-Lago spa, whom he described largely as young women or girls.

This differs with earlier accounts by him and his staff of other reasons for the break-up of what had been a beautiful brotherhood.

The president's predicament may have been due to lack of non-compete agreements with his wayward spa employees. These types of restrictive arrangements barring future employment with a competitor were permissible at the time under a Florida law dating back to the late 1990's, which gave judges discretion to impose post-employment restrictions on contractual agreements limiting competitive activities for a "reasonable" time period, usually six months to two years. 

The newest revelation by the president directs attention to a new non-compete law passed this year by the Legislature and signed by Governor DeSantis that went into effect July 1st. The measure bears  the grandiose title of "Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth" (CHOICE) Act; someone must have worked pretty hard to devise that monicker. 

Bolstering the existing law by extending non-competes for employees as well as independent  contractors, except health care workers, under written agreements for up to four years and removing some significant obstacles on their use by employers, the act makes Florida one of the most hospitable states for businesses and employers wishing to use these post-employment devices. 

The new law goes against the grain of non-compete developments in other parts of the country. The Federal Trade Commission (FTC), an aggressive regulatory body in the Biden administration, issued an edict barring most non-competes across the country, except for high paid executives, on grounds that they are anti-competitive and tend to drive down employee opportunities for career advancement and wages. That measure, however, has been tied up in the courts for years, and even if it emerges unscathed, the Trump administration is likely to retract it  as an impermissible business regulation.

A couple of years ago, Minnesota joined three other eclectic states (California, Wyoming, and North Dakota) in barring most non-compete agreement arrangements except in connection with the sale of a business, and some states like New York have restricted them for low paid fast food employees fueled by an initiative introduced in Congress nearly a decade ago by Al Franken, a senator at the time from Minnesota before he was brought down by what many consider a bogus #me2 kerfuffle at the height of that movement. Although his overture did not go into effect at the federal level, it seeded the field for other jurisductions to do so. 

The sweeping changes wrought by Florida's new CHOICE law include removing the discretion previously accorded judges in declining  to impose restrictions they deem unreasonable  or inequitable. Now, they are required to enforce restrictions called for in written agreements between employers and employees if the appropriate checklists are satisfied for up to the four-year maximum, coupled with strengthened enforcement tools. Unlike the  prior law, which required the employers to prove the particular restrictions are "reasonable," under CHOICE, non-compete agreements are presumed to be proper and valid  unless the restrained employees challenging them can show by "clear and convincing" evidence that they do not have confidential information, that they will not be doing similar work for a new employee or as a start-up, or that their current employer has failed to pay them for their work. 

These  standards  will make it much easier for employers to enter into these agreements and  enforce them against employees. The inevitable effect will be to limit the mobility and marketability of employees and, concomitantly drive down wages and benefits by restricting their ability to move from one job to another or to start  their own businesses with the knowledge and skills they possess.

There are, to be sure, some valid reasons  for non-complete agreements, especially when businesses incur significant time, expense, and other resources training employees, or when employees have access to confidential data or the identity of customers that they can purloin. But the new Florida measure seems to be more restrictive than necessary to accomplish these justifiable objectives. 

In addition to strengthening the hands of employers in non-compete agreements, the new CHOICE  measure recognizes "garden leave," an arrangement in which employers and employees agree to restrict future competition for up to as long as four years, provided  that the employers pay the worker's regular salary and benefits while on the sidelines. 

Although sounding like a pleasurable paid vacation, the arrangement is not so benign. It does not include salary increases, bonuses, or boosts in benefits over the four-year span. It also takes employees out of the job market for up to that period, making them less employable at an older age and with the need to re-tool their skills and re-establish their business contacts. While it does not equate to slavery, a"garden leave" is no rose garden and resembles a form  of involuntary servitude. 

The new law does not apply to all employees, and lower paid ones are outside of the scope. The measure only covers employees earning  more than at least double the average annual salary in the county where employed, which currently amounts to about $120,000 in most places around the state.

The state's CHOICE law leaves a lot of unanswered questions in its wake. They include coordinating the measure with the existing law, which remains on the books and is more lenient to employees.  Additionally, determining the salary of independent contractors whose wages fluctuate depending  upon how often they are given projects to do poses a conundrum. Furthermore, the law leaves in doubt whether employees can move from one company to a similar one or start their own similar businesses, for that matter, if they are not engaged in work activities that are competitive with their former employers.

These and other issues will have to be ironed out, possibly in contentious, costly, and  lengthy legal battles. 

Even had it been in effect two decades ago, when President Trump claims Epstein pilfered his employees, the CHOICE law probably would not have been of any use to the owner of Mar-a-Lago because it only impacts high paid workers at double the average worker's wages. Those females working at Mar-a-Lago 20 years ago probably did not fit that classification then or even now, excluding tips, which will not be taxed under the president's "Big Beautiful Bill."

But that's an issue for another day.

Marshall H. Tanick of Naples is a constitutional law attorney.