Updates to Florida Non-Compete Agreements from the CHOICE Act

Adam Wicker
May 1, 2025
a person reviewing a contract

While there have been many efforts at the state and federal levels to limit the effectiveness of non-compete agreements, Florida is looking to become the nation’s leader in enforcement of non-compete and garden leave agreements. The “Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act,” passed both the Florida House and Senate on April 24, 2025 and is expected to be signed into law by Governor DeSantis, taking effect on July 1, 2025.

Under the CHOICE Act, a “covered employee” is defined as any employee or independent contractor who earns or is reasonably expected to earn a salary (excluding discretionary incentives, bonuses, or commissions) twice the annual mean wage in Florida or who has access to “confidential information or customer relationships.” Notably, the CHOICE Act’s definition of covered employee specifically excludes any person classified as a “medical professional” as defined under Florida law.

Both covered non-compete agreements and covered garden leave agreements require additional notice requirements in order to be enforceable. Both agreements require that the covered employee be advised, in writing, of the right to seek counsel prior to executing the agreement. Additionally, the employee (whether new or existing) must be provided at least seven days to review the agreement before signing.

Enforcement of covered agreements under the CHOICE Act is simpler for employers. The biggest change comes in the form of obtaining preliminary injunctions against covered employees or new employers when a former employee violates a non-compete agreement. Previously, the employer was required to establish that the breach of a non-compete agreement would result in unfair competition. Pursuant to the CHOICE Act though, courts must issue a preliminary injunction upon application by a covered employer prohibiting the covered employee from providing services to anyone other than the covered employer during the non-compete period. The court can only modify or lift this injunction if the covered employee (or new employer) shows through clear and convincing evidence that:

  • The employee is not performing similar work during the restricted period or using confidential information or customer relationships;

  • The employer failed to pay the salary or benefits provided for in the non-compete agreement and has had a “reasonable opportunity” to cure the failure; or

  • The prospective employer is not engaged or preparing to engage in a business similar to that of the covered employer.

Additionally, if the covered employee engage in “gross misconduct” against the covered employer, the covered employer can reduce the salary or benefits of the covered employee or “take other appropriate action during the notice period” without being considered in breach of a covered garden leave agreement.

Overall, the CHOICE Act represents a notable change in restrictive employment agreements, in both their construction and enforcement in Florida. If you have questions about the impact of the CHOICE Act and its effects, please schedule a conference with one of our Labor and Employment attorneys at Shuffield, Lowman & Wilson, P.A., for more information.