Florida Enacts Pro-Employer Non-Compete Law

Florida recently enacted the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act (the “CHOICE Act”), effective July 1, 2025. The CHOICE Act provides a roadmap for creating a per se enforceable noncompete agreement (up to 4 years) with higher-compensated employees or independent contractors under Florida law. It also requires courts to issue preliminary injunctions to enforce covered noncompete agreements. Additional details regarding the CHOICE Act are below.

What Noncompete Agreements Are Covered?

The CHOICE Act applies to a “covered noncompete agreement” with a “covered employee” who primarily works in Florida, regardless of any choice of law provisions in favor of another state. It also applies to “covered noncompete agreements” with a “covered employer” whose principal place of business is in Florida and which agreement contains a choice of law clause in favor of Florida law.

Covered Employees and Contractors

The CHOICE Act applies only if the employee or contractor subject to the noncompete earns, or is reasonably expected to earn, a salary greater than 2x the mean wage of the Florida county in which the employer has its principal place of business. If the employer’s principal place of business is outside of Florida, the employee’s salary must be greater than 2x the annual mean wage of the county in which the employee resides. The salary cutoff could therefore range between approximately $80,000 to $165,000 per year, depending on the county involved. Discretionary incentives such as tips, bonuses, and commissions do not count toward the threshold.

Covered Noncompete Agreements

The CHOICE Act applies to written agreements where a covered employee agrees, for less than 4 years and within a defined geographic area, not to assume a role with any other individual or entity:

• “In which the covered employee would provide services similar to the services provided to the covered employer during the 3 years preceding the noncompete period”; or
• “In which it is reasonably likely the covered employee would use the confidential information or customer relationships of the covered employer.”

Agreements that restrict an employee from working for a competitor “in any capacity,” therefore, could fall outside the CHOICE Act’s reach. The Act requires a “defined geographic area,” but it does not place any “reasonableness” requirement on such defined geographic area.

Effect of the CHOICE Act on Covered Noncompete Agreements

Per Se Enforceable Noncompetes

If the CHOICE Act applies to a given noncompete agreement, the covered noncompete is “fully enforceable according to its terms” so long as:

• A covered employee is advised in writing of the right to seek counsel before execution of the covered noncompete agreement;
• The covered employee acknowledges, in writing, that the employee will receive confidential information or customer relationships during the employee’s employment, a standard provision in most noncompete agreements;
• The noncompete agreement provides that the length of the post-employment restriction is reduced day-for-day by any nonworking portion of a notice period pursuant to a covered garden leave agreement (if any); and
• The employer provides a proposed covered noncompete agreement to the employee or prospective employee 7 days before the offer of employment, or offer to enter into a covered noncompete agreement, expires.

Mandatory Preliminary Injunctions, and Other Remedies

In an unprecedented move, the CHOICE Act provides that, upon application by an employer, a court “must” preliminarily enjoin a covered employee from providing services to “any” individual or entity other than the covered employer during the noncompete period. The court may modify or dissolve the injunction “only if the covered employee establishes by clear and convincing evidence, based on nonconfidential information,” that either:

• The covered employee will not, during the noncompete period, perform any services similar to those the employee provided to the employer in the 3-year period preceding the post-employment noncompete period, or use confidential information or customer relationships of the covered employer;
• The covered employer failed to pay or provide the consideration called for in the noncompete agreement, and the employer has had a reasonable opportunity to cure such failure; or
• The prospective employer is not engaged in, and not planning to engage in, business similar to that of the former employer within the geographic area specified by the noncompete.

A court must similarly enjoin, upon application, a prospective employer from engaging a covered employee during the employee’s noncompete period unless the prospective employer establishes one of the foregoing exceptions applies by “clear and convincing evidence.”  

Garden Leave Clauses

The CHOICE Act also applies to “covered garden leave agreements.” Such agreements are written agreements with “covered employees” (i.e., those higher-compensated employees described above) where: (a) the employee agrees to provide up to 4 years of advance notice before terminating the employment or contractor relationship; and (b) the employer agrees to retain and continue paying the employee during the notice period. A garden leave agreement covered by the statute is per se enforceable if it provides:

• After the first 90 days of the notice period, the covered employee does not have to provide services to the covered employer;
• The covered employee may engage in nonwork activities at any time during the remainder of the notice period;
• The covered employee may work for another employer during the garden leave, with the permission of the covered employer; and
• The covered employer may reduce the notice period upon providing 30 days’ advance notice to the covered employee.

Additionally, like covered noncompete agreements, an employer must advise the employee of their right to counsel before executing the garden leave agreement, the employee must acknowledge in writing receipt of confidential information or customer relationships, and the employer must give the employee 7 days to review the agreement before it expires.

Agreements Not Covered by the CHOICE Act

Agreements with health care practitioners are specifically exempted from the CHOICE Act. This includes physicians, nurses, chiropractors, and psychologists. In addition, a noncompete is not void if it falls outside the scope of the CHOICE Act; it simply will not receive the favorable treatment the CHOICE Act provides.

Conclusion

The CHOICE Act provides a powerful tool to employers enforcing noncompete agreements.  Florida employers, or employers with employees in Florida, should consider revising their form agreements so that they can benefit from the CHOICE Act’s favorable provisions. Conversely, hiring employers must exercise caution when extending offers to employees whose noncompete agreements with their former employers may fall within the CHOICE Act’s reach.

Please contact one of Honigman’s Labor and Employment attorneys with any questions. We will continue to monitor developments in this area.