As states across the country move to limit or ban non-compete agreements, Florida is taking a sharp turn in the opposite direction. Already a friendly jurisdiction for non-competes, the state is doubling down on employer protections with legislation that significantly expands the enforceability of both non-compete and garden leave provisions.
A New Standard for Employer Protections
On April 24, 2025, the Florida Legislature passed the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act. The law went into effect on July 3, 2025
The CHOICE Act, despite its name, introduces sweeping changes that reinforce employer control over post-employment restrictions. The changes under the Act apply to “covered employees,” defined as employees and individual contractors (excluding healthcare workers) earning more than the mean wage for their county, which is currently estimated at around $120,000 per year.[1] While some states have set similar thresholds, the CHOICE Act goes far beyond typical frameworks in its scope and enforceability.
Expansive Application
If the covered employee’s “primary place of work”[2] is in Florida, the CHOICE Act applies, regardless of any applicable choice-of-law provisions. The Act also applies to covered employers (broadly defined as any “entity or individual” that employs or engages a covered employee) with their principal place of business in Florida, if the agreement is expressly governed by Florida law.
The Act expressly preempts any state law that conflicts with its terms, setting up a potential wave of litigation over jurisdictional boundaries.
For example, this law may clash with California Labor Code Section 925 and recent amendments to California’s Business and Professions Code 16600, which aim to prevent employers from circumventing California’s strict policy against non-competes.
Expanding the Scope of Enforceability
Unlike recent legislation in states such as California and Colorado, which effectively deem non-compete provisions in employment agreements presumptively void, absent some narrow statutory exceptions, the CHOICE Act establishes a presumption of enforceability for covered non-compete agreements.
Remarkably, the Act permits non-competes to extend for a duration of up to four years, which far exceeds the limits set by any other state statute governing non-competition agreements.[3]
The CHOICE Act further provides an expansive definition of what constitutes restricted activity. Under the new law, non-competes may prohibit employees from working with any business that offers services “similar to” those of the former employer during the three years prior to termination. Employers may also block employees from joining competitors or leveraging customer relationships if it is “reasonably likely” they would use confidential information.
The remaining conditions to enforceability of non-competes in the CHOICE Act are relatively minimal. The employer must ensure the following conditions are met for the agreement to be enforceable:
- The covered employee must provide a written acknowledgment that they will receive confidential information or customer relationships over the course of their employment;
- The covered employee must be advised, in writing, of their right to seek legal counsel before executing the non-compete agreement;
- The employer must allow the covered employee at least seven days to consider the agreement; and
- The non-compete period must be reduced day for day by any nonworking portion of the restricted post-employment period under an applicable covered garden leave agreement.
Garden Leave
In another notable departure from national trends, the CHOICE Act affirms the enforceability of garden leave provisions, which require an employee to remain away from the workplace during their notice period while still receiving their regular salary and benefits. During garden leave, an employee is typically restricted from starting a new job with a competitor or engaging in any activities that could conflict with the interests of the current employer.
The CHOICE Act allows employers to place an employee on garden leave for up to four years, which can be reduced with at least thirty days’ advance notice. During the garden leave period, employees must be paid base salary, but do not have to provide services to the employer after the first 90 days of the notice period. The Act does allow employees to work for another employer during the garden leave period, but only with its current employer’s consent, which presumably would rarely be granted in practice.
Strong Remedies and Injunctive Relief
The CHOICE Act provides robust remedies for employers, requiring courts to preliminarily enjoin covered employees from providing competitive services and prohibiting businesses, entities, and individuals from engaging covered employees during the non-compete period. And the court may modify or dissolve the injunction only if the employee establishes by “clear and convincing evidence,” a higher burden of proof than the standard “preponderance of the evidence,” that no confidential information will be utilized, that the employee will not be providing “similar services,” or that the employer has failed to fulfill payment obligations as agreed.
Considerations for Employers
With the CHOICE Act, Florida bucks the national trend, reinforcing a strong pro-employer stance on restrictive covenants. With the enactment of this legislation, Florida is poised to become one of the most favorable jurisdictions for non-compete agreements in the United States especially in light of recent trends in other states, such as Delaware, moving in the opposite direction.
On its face, the statute appears to apply only to non-competes in the employment context—rather than non-competes included in the sale of a business. Presumably, sale-of-business non-competes would be subject to Florida’s existing statute, which provides that when a restrictive covenant is enforced against the seller of a business or the shares of a corporation, a restraint lasting more than seven years is presumed unreasonable.[4] Historically, Florida courts have demonstrated greater deference to the scope and duration of non-compete agreements arising from the sale of a business.[5] Florida law also includes a unique requirement in the context of mergers and acquisions: any assignment of a non-compete provision to a successor must be expressly authorized in the agreement, a rule that remains unchanged under the existing statute.[6]
As of now, it is unclear how choice-of-law considerations will play out with employees potentially relocating to states with prohibitive non-compete laws, such as California. But recent cases, such as DraftKings Inc. v. Hermalyn,[7] may be instructive.
Given the growing differences in how states are treating restrictive covenants, and the FTC’s effort to impose a nationwide ban that has been effectively sidelined, choice-of-law provisions are more critical than ever in navigating employee mobility concerns and the enforcement of non-competes.
[1] Florida’s existing law, under Fla. Stat. Ann. § 542.335, which still applies to all restrictive covenants, regardless of employee salary, allows for non-competition provisions that are reasonable in time, area, and line of business.
[2] The Act defines “primary place of work” as “the location where the covered employee spends more work time than any other single workplace.” (2025 Florida House Bill No. 1219, § 542.43(9)).
[3] Most states do not specify a maximum enforceable duration for non-competes, with few exceptions. The states with the next longest durations are Massachusetts, where the “restricted period” for non-competes cannot exceed two years if the employee breached fiduciary duty or misappropriated employer property, and South Dakota, where non-competes may be enforced for up to two years following the end of employment. Louisiana also limits non-compete provisions to two years, but only for agreements between corporations and individual shareholders, and partnerships and individual partners.
[4] Fla. Stat. Ann. § 542.335.
[5] See USI Ins. Servs. of Fla. Inc. v. Pettineo, 987 So. 2d 763, 766 (Fla. Dist. Ct. App. 2008).
[6] Fla. Stat. Ann. § 542.335.
[7] 732 F. Supp. 3d 84 (D. Mass.), aff’d, 118 F.4th 416 (1st Cir. 2024).
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