Florida CHOICE Act expanding employer non-compete options takes effect

At a glance

• The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act (CHOICE Act) provides new options for non-compete and garden leave agreements.
• The CHOICE Act came into effect on July 1, 2025.
• The CHOICE Act allows for easier enforcement of covered non-compete agreements, extending the maximum enforceable period to four years. 

Effective July 1, 2025, the CHOICE Act provides new options for non-compete and garden leave agreements with employees in the state earning over a certain base salary. 

Currently, Florida Statute 542.335 governs restrictive covenants and requires employers to prove that a non-compete is necessary and reasonable by showing: (1) a written, signed agreement; (2) a legitimate business interest (such as trade secrets or customer relationships); and (3) reasonable limitations on time, geography, and business scope. 

The CHOICE Act does not replace existing restrictive covenant law but rather provides new options and protections for employers. Below we discuss key provisions of the new CHOICE Act.

Covered employees 

The CHOICE Act applies to any employee or individual contractor (excluding healthcare professionals) who earns a base salary greater than twice the annual mean wage of the county where the employer’s principal place of business is located or where the employee resides if the employer is out of state.

Non-compete agreements

The CHOICE Act allows for easier enforcement of covered non-compete agreements, extending the maximum enforceable period to four years. Previously, the burden was on employers to prove the reasonableness of the agreement. Under the CHOICE Act, the burden shifts to employees to demonstrate that the agreement is unenforceable provided certain conditions are met. These include:

• The written agreement defines the geographic area.
• It is reasonably likely the employee would provide services similar to those provided to the employer or use confidential information or customer relationships.
• Employers must provide the agreement at least seven days before an employment offer expires or before an offer to enter into such an agreement expires for current employees.
• The employee is advised in writing of the right to seek counsel.
• The employee acknowledges in writing the receipt of confidential information or customer relationships.
• The noncompete period is reduced day-for-day by any non-working portion of a garden leave notice period.

Garden leave agreements

Under the CHOICE Act, garden leave agreements that prevent an employee from engaging in work for another employer without the covered employer’s permission for up to four years do not violate public policy as a restraint of trade if the following conditions are met: 

• The employee continues to receive their base salary and benefits during the garden leave period.
• After the first 90 days, the employee is not required to work and may engage in nonwork activities and, with employer permission, work elsewhere.
• The employer provides the agreement at least seven days before an offer of employment expires or to a current employee at least seven days before the date that an offer to enter into a covered garden leave agreement expires.
• The employee is advised in writing of their right to legal counsel. 
• The employee acknowledges in writing the receipt of confidential information or customer relationships. 

The CHOICE Act further provides that employers can reduce the notice period if the employer provides at least 30 days’ written notice to the employee.

Enforcement

The CHOICE Act mandates that courts issue preliminary injunctions for alleged violations, unless the employee can prove by clear and convincing evidence that the employee will not (1) perform similar services or use confidential information; (2) the new employer is not a competitor; (3) or the employer failed to provide the required salary or benefits provided for in a covered garden leave agreement or a covered non-compete agreement. A preliminary injunction for alleged violations of a covered non-compete agreement may also be issued against a business or contracting party as well and they would have to show by a clear and convincing standard that (1) the employee will not do similar work to what they did for their previous employer in the last three years, and will not use the previous employer’s confidential information or customer relationships; or (2) the new employer or person is not involved in, and does not plan to get involved in, the same type of business as the previous employer in the area covered by the noncompete agreement.

Employers may reduce pay or benefits for gross misconduct during the notice or non-compete period. Prevailing parties in enforcement actions are entitled to attorneys’ fees and costs. The CHOICE Act does not affect other employment agreements or existing non-competes not covered by the CHOICE Act.