Important Client Alert – Florida’s New Noncompete Landscape

Beginning July 1, 2025, Florida’s “Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act” (CHOICE Act) will take effect. The CHOICE Act now requires courts to enjoin employees from violating an enforceable noncompete agreement and introduces significant changes to how employers can restrict post-employment competition.

For over two decades, Florida law has set out presumptions about the enforceability of noncompete agreements, generally treating restrictions of six months or less as valid, while those exceeding two years are typically viewed as unenforceable. The CHOICE Act will alter Florida’s legal framework for restricting competitive employment by providing a presumption that “Covered Noncompete Agreements” and “Covered Garden Leave Agreements” entered into by and between “Covered Employees” and “Covered Employers” are enforceable, so long as they meet certain technical requirements as described below.

Who are Covered Employees and Covered Employers?

Covered Employees are employees or contractors who earn, or are expected to earn, a salary greater than twice the mean wage of the Florida county where either 1) the employer’s principal place of business is or 2) where the employee resides, if the employer’s principal place of business is not in the state of Florida. A Covered Employer is an employer who engages with or employs a Covered Employee.

What is a Covered Noncompete Agreement?

A noncompete agreement is an agreement entered into between an employer and an employee that restricts an employee’s post-employment work activities. The noncompete agreement must protect a legitimate business interest (e.g., trade secrets, customer relationships, specialized training). The employee is restricted from obtaining a similar role at a competing company, which protects the previous employer’s business interests. This agreement outlines a period of time (typically one to four years) and a geographic area in which the employee is prohibited from working in a similar capacity for another company. Under the CHOICE Act, a noncompete agreement is an enforceable Covered Noncompete Agreement if it meets the criteria below and is between a Covered Employee and a Covered Employer.

To be presumed enforceable, a Covered Noncompete Agreement must:

1. Be in writing and advise the Covered Employee of their right to seek counsel prior to signing the agreement and permit the Covered Employee at least seven (7) days to review the agreement prior to signing.
2. Include a written acknowledgment from the Covered Employee confirming that they have received or will receive confidential information or customer relationships during the term of their employment with the Covered Employer.
3. Limit the noncompete period to a maximum of four (4) years.
4. Specify that the noncompete period would be reduced day-for-day by any nonworking portion of a garden leave notice period, if applicable.

What is a Covered Garden Leave Agreement?

A garden leave agreement requires the employer to continue paying the employee’s salary and benefits for a period of time, even if the employee is not working, in exchange for the employee not taking new employment. A Covered Garden Leave Agreement is a written agreement, or provision within an agreement, in which the Covered Employee and Covered Employer agree to require up to, but no more than, four (4) years of advanced, express notice before terminating the employment or contractor relationship. During such notice period, the Covered Employer must agree to continue paying the same salary and benefits the Covered Employee was receiving in the last month before the notice period began (excluding any discretionary incentive compensation or benefits).

To be presumed enforceable, a Covered Garden Leave Agreement must:

1. Be in writing and advise the Covered Employee of their right to seek counsel prior to signing the agreement and permit the Covered Employee at least seven (7) days to review the agreement prior to signing.
2. Include a written acknowledgment from the Covered Employee confirming that they have received or will receive confidential information or customer relationships during the term of their employment with the Covered Employer.
3. Provide that:
   1. After the first ninety (90) days of the notice period, the Covered Employee will not be obligated to continue providing services to the Covered Employer.
   2. The Covered Employee may engage in nonwork activities during the remainder of the notice period.
   3. The Covered Employee may, with the permission of the Covered Employer, work for another employer while still employed by the Covered Employer during the remainder of the notice period.
   4. The Covered Employer may shorten the term of the required notice period, during the notice period, by providing at least thirty (30) days’ advanced written notice to the Covered Employee.

It is important to note that the CHOICE Act allows a Covered Employee to reduce the salary or benefits to be provided to a Covered Employee during the notice period if the Covered Employee engages in gross misconduct against the Covered Employer.

What Does Enforcement Look Like?

 This new legislation creates a presumption that a Covered Noncompete Agreement or a Covered Garden Leave Agreement (each a “Covered Agreement”) is enforceable and does not violate public policy if it meets the statutory criteria described above, placing the burden on the employee to show that a Covered Agreement should not be enforced. Upon application, a court is required to issue a preliminary injunction, which prevents the Covered Employee and/or the new employer from violating a Covered Agreement. The preliminary injunction acts as a “pause” to prevent the Covered Employee from breaching a Covered Agreement. Moreover, this new legislation seeks to eliminate any conflict of law in favor of the CHOICE Act. This means that if a dispute regarding a Covered Agreement were to arise between a Florida employer and an employee in a different state, the CHOICE Act should govern. In an action to enforce a Covered Agreement, the prevailing party is entitled to reasonable attorneys’ fees and costs.

A court may modify or dissolve a Covered Agreement only if the Covered Employee and/or the new employer can prove, by clear and convincing evidence, using only nonconfidential information, that:

1. The Covered Employee will not perform services for the new employer that are similar to the services provided to the Covered Employer, nor will they use confidential information from the Covered Employer.
2. The new employer is not engaged in (or planning to engage in) competing business activities.
3. The Covered Employer failed to provide the salary or benefits required by a Covered Agreement.

What should Employers do Now?

 The CHOICE Act marks a major shift in Florida’s law on restrictive employment covenants, providing employers with expanded options to protect their business interests through enforceable noncompete and garden leave agreements. Employers who wish to benefit from these legislative changes should promptly evaluate and update their current agreements or consider preparing new ones as needed.

Key Takeaways

1. The CHOICE Act creates a presumption that Covered Agreements are enforceable.
2. Courts are required to issue a preliminary injunction to prevent an employee from violating a Covered Agreement.
3. A court is only required to modify or dissolve the preliminary injunction if the Covered Employee proves, by clear and convincing evidence, either that i) the Covered Employee will not perform services for the new employer that are similar, nor will they use the Covered Employer’s confidential information; ii) the new employer is not engaged (or planning to engage in) competing business activities; or iii) the Covered Employer did not provide the salary or benefits required under the Covered Agreement.
4. The CHOICE Act purports to override conflicting out-of-state laws, applying Florida law even if the employee works elsewhere.
5. In an action to enforce a Covered Agreement, the prevailing party is entitled to reasonable attorneys’ fees and costs.
6. The CHOICE Act does not apply to existing noncompete agreements, and there are some professions that are exempted (like certain health care professions).
7. Employers looking to utilize these new restrictive covenants to protect their business interests should ensure compliance with all notice, wage, and contract language requirements.

Please contact our office if you are interested in reviewing your business’s noncompete agreements and their enforceability or if you’re interested in implementing new tools to restrict post-employment competition.

Please note that the information in this article is current as of June 17, 2025. The content of this article is for informational purposes and does not constitute legal advice, nor is it intended to be a substitute for legal counsel on any subject matter. You should not act or refrain from acting on the basis of any information in, or accessible through, this article without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.