Milonic JavaScript Menu is only visible when JavaScript is enabled
DMI home

Mulling the Meaning of an Employee’s “Termination”

Florida’s Third District Court of Appeal, construing a non-compete provision in an employment agreement, ruled this week that the phrase “employee’s termination of employment with the company” “unambiguously refers to the employee’s own termination of his or her employment.” Avisena v. Santalo, Case No. 3D10-178 (Fla. 3d DCA, May 4, 2011) (emphasis supplied). 

The effect of the court’s ruling was that the employee, who had been terminated by the company, was not bound by the longer non-compete restriction that would have applied if he had left on his own accord.  The court, therefore, affirmed the trial court’s denial of the company’s motion for a temporary injunction.

Ironically, I  have heard employees’ attorneys argue that the words "employee's termination” mean precisely the opposite of the Third DCA’s interpretation.  These attorneys say that when an employee’s personnel file reflects an employee’s “termination,” that suggests the company terminated the employee.  According to these plaintiffs’ lawyers, if the employee actually resigned, documenting a “termination” in a personnel file, or in a response to a request for employment verification, could constitute defamation; or, in the case of an employee who had engaged in protected activity before she resigned, retaliation.

I always considered such arguments to be dubious, and still do.  But I also think the Third DCA got it wrong in Avisena.  As Judge Schwartz noted in his dissenting opinion, the word “termination” “simply means the end of given period of time or relationship, regardless of how it occurs.”  The word “termination” and the phrase “employee’s termination” do not unambiguously describe who initiated the termination.  If your employment contracts are premised on the assumption that the word “termination” carries an unambiguous meaning, you may want to revisit those contracts.  Avisena’s attorneys are probably doing that right now.


The Florida Employer

Reporting employment and immigration law developments that affect Florida employers.

Search The Florida Employer's blog

« April 2014
Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.