By: Sarah Reiner, Dena Sokolow, and Perry O’Connor
Florida’s CHOICE Act is set to dramatically reshape the legal landscape for non-compete and garden leave agreements in Florida, giving employers significantly greater leverage to protect their business interests. The Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act passed the Florida Legislature and is expected to take effect on July 1, 2025, expanding the ability of employers to establish, enforce, and defend restrictive covenants in Florida.
What is the Florida CHOICE Act?
The CHOICE Act introduces two primary types of “covered agreements”:
- Non-compete agreements that prohibit former employees from working for competitors within a defined geographic and temporal scope.
- Garden leave agreements that require employees to sit out a notice period, typically with continued salary and benefits, before joining a competitor.
Both types of agreements are tailored to protect proprietary information and client relationships, while establishing a more employer-favorable enforcement regime. A key feature of the CHOICE Act is its shift in legal burden. Courts must issue preliminary injunctions to enforce covered agreements unless the employee or their new employer can present clear and convincing evidence that the agreement is unenforceable. For example, an employee might defeat an injunction by showing the employer failed to provide proof that the employee would perform similar work. Additionally, the CHOICE Act extends the maximum enforceable period for both non-compete and garden leave agreements from two to four years, significantly broadening the duration of post-employment restrictions.
The CHOICE Act also imposes procedural safeguards:
- Employers must provide written notice informing employees of their rights to seek legal counsel before signing.
- Agreements must be provided at least seven days prior to execution.
- The agreement must explicitly state that the employee will acquire confidential information or client-related information during employment.
Who is considered a “Covered Employee” under the CHOICE Act?
The CHOICE Act applies to employees who earn at least twice the annual mean wage in their employer’s Florida county (or the employee’s home county, if their employer’s main office is elsewhere). Independent contractors can fall under the “covered employees” umbrella under certain conditions, but healthcare personnel are explicitly excluded.
What are the implications to Florida’s employers if the CHOICE Act is adopted?
In practical terms, the CHOICE Act grants Florida employers significantly greater leverage in crafting and enforcing restrictive covenants, particularly for high-earning employees in sensitive or strategic roles. It also highlights the importance of clarity, notice, and compliance, requiring employers to revisit existing agreements to ensure alignment with the new legal standards by July 1, 2025. For employees, especially those considering a job transition, the legal landscape has become more restrictive and complex. Against the backdrop of a national trend limiting non-compete enforcement, including the Federal Trade Commission’s 2024 attempt to ban such agreements, the Florida Legislature has taken a distinctly pro-employer approach. By strengthening contractual protections and judicial remedies, it is evident lawmakers are looking to position Florida as a business-friendly haven for employers seeking to safeguard proprietary interests and retain key talent.
How will the CHOICE Act impact Florida’s marketplace?
The CHOICE Act signals a deliberate policy shift toward reinforcing employers’ ability to protect competitive interests in a labor market challenged by employee mobility, retention pressures, and increasing federal scrutiny. By requiring courts to issue preliminary injunctions unless an employee can prove the agreement is unenforceable, the CHOICE Act dramatically expands employers’ contractual power. Whether this legislative move will attract business investment or provoke future legal challenges remains to be seen. If Governor DeSantis signs the CHOICE Act, it will take effect on July 1, 2025, fundamentally altering how non-compete and garden leave agreements are drafted, enforced, and litigated in Florida.
Impact on Current Florida Restrictive Covenant Law
The CHOICE Act specifically provides that any action that does not meet the definition of a covered garden leave or noncompete agreement as provided by the CHOICE Act is governed by Florida’s current statute authorizing restrictive covenants, s. 542.335, Florida Statutes. As such, the current statute remains a viable alternative for protecting employer legitimate business interests, including those beyond confidential information and customer relationships.
Employer Action
The CHOICE Act provides employers with additional legal authority supporting their efforts to protect confidential information and customer relationships, but employers should not adopt an “out with the old, in with the new” approach once the CHOICE Act takes effect. Open questions remain regarding the CHOICE Act including conflicts between its provisions and current Florida law on a variety of issues, and litigation regarding the restrictions imposed by the CHOICE Act is also a distinct possibility. Careful analysis in conjunction with your employment counsel will be necessary to determine what nature of restrictive covenant(s) will best protect the employer’s interest moving forward, and whether they should be structured in accordance with the CHOICE Act, or s. 542.335, Florida Statutes.
Questions?
Contact GrayRobinson Shareholders Sarah Reiner or Dena Sokolow or a member of the Labor and Employment practice.