While states across the country, including Texas and Virginia, continue to enact laws that restrict or ban noncompete agreements, a new Florida law does the opposite. Effective July 1, 2025, the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act makes covered noncompete and garden leave agreements presumptively enforceable if requirements — such as income thresholds and proper notice — are met.
The CHOICE Act requires courts to preliminarily enjoin individuals or entities from violating covered agreements, and such injunctions may only be modified or dissolved if the covered employees establish, by clear and convincing evidence, that no violation will occur. Specifically, the covered employee must prove that: (1) the employee will not provide similar services or use the employer’s confidential information or customer relationships; (2) the covered employer failed to provide the proper consideration under the agreement after a reasonable opportunity to cure; or (3) the new employer is not engaged in, and does not plan to be engaged in, a similar service within the agreement’s geographic area. The presumption of enforceability, mandatory preliminary injunction, burden-shifting and heightened standard of proof make it easier for employers to enforce their covered agreements.
The CHOICE Act supplements, and does not replace, existing Florida law requiring restrictive covenants to be written, signed and reasonably necessary to protect a legitimate business interest considering the restrictive covenant’s duration and geographic scope. While Florida’s preexisting law makes employment-related noncompetes that exceed two years presumptively unenforceable, the CHOICE Act renders covered noncompetes up to four years presumptively enforceable. Restrictive covenants that do not meet the CHOICE Act’s requirements will continue to be analyzed under Florida’s preexisting statutory framework.
Individuals Covered by the CHOICE Act
The CHOICE Act only applies to a “covered employee,” meaning an employee or independent contractor who works in Florida more than anywhere else or works for an employer whose principal place of business is in Florida and the applicable agreement is expressly governed by Florida law. The covered employee must also earn a salary greater than twice the annual mean wage of the relevant Florida county.
However, the CHOICE Act expressly states that it does not apply to a person classified as a “health care practitioner” under Fla. Stat. Ann. § 456.001, such as physicians, nurses, pharmacists, dentists, massage therapists, physical therapists and psychologists.
Agreements Covered by the CHOICE Act
The CHOICE Act applies to certain noncompete agreements and garden leave agreements and will only apply if the covered employee:
- Is advised in writing of the right to seek counsel before signing the agreement;
- Is provided with the agreement at least seven days before the offer expires; and
- Acknowledges in writing the receipt of confidential information or customer relationships.
A “covered noncompete agreement” is a written agreement under which the covered employee agrees, for up to four years and within the defined geographic area, not to assume a role in which: (1) the employee would provide similar services to those the employee performed for the former employer during the three years prior to the noncompete period; or (2) it is reasonably likely the employee would use the former employer’s confidential information or customer relationships. The noncompete must also note that, if the employer and employee are also party to a garden leave agreement, the noncompete period is reduced day-for-day by any nonworking portion of the garden leave agreement’s notice period.
A “covered garden leave agreement” is a written agreement under which an employer pays a covered employee not to work for another employer during a defined period. To qualify: (1) the employee agrees to provide up to four years of express notice before ending the employment or contractor relationship and agrees not to resign before the end of such notice period; and (2) the employer agrees to retain the covered employee for the duration of such notice period at the same salary and benefits that the employee received in the month before the notice period began.
The garden leave agreement must also include the following provisions:
- After the first 90 days of the notice period, the employee does not have to provide services to the employer;
- The employee may engage in nonwork activities at any time during the remainder of the notice period;
- The employee may work for another employer during the remainder of the notice period if the employee receives permission from the original employer; and
- The notice period may be reduced by the employer at any time during the notice period if the employer provides at least 30 days’ written notice to the employee.
Key Takeaway
The CHOICE Act provides employers connected to Florida an opportunity to review their restrictive covenants. Employers looking to capitalize on this development should analyze their workforce to determine who is a “covered employee” under the law, determine what noncompete and garden leave agreements are already in place, and revise agreements and related processes to comply with the law’s requirements.
For more information, contact any of the authors of this article or a member of the firm’s Labor & Employment Department.