Bucking the national trend to diminish, if not eliminate, noncompete agreements, led in part by the Biden administration’s efforts to outlaw them via Federal Trade Commission regulation, Florida says “COME ONE, COME ALL -- Do business here, and we will protect your assets, your customers and your confidential information.”
Effective July 1, 2025, Florida changed the noncompete landscape by passing the Florida Contracts Honoring Opportunity, Investment, Confidentiality and Economic Growth (“CHOICE”) Act. CHOICE provides the following employer rights:
- Doubles the duration of permissible noncompete covenants from two to four years.
- Eliminates the geographic scope limitation requirement.
- Extends CHOICE to cover a Florida employer’s out of state employees.
But perhaps the most pivotal change lies in enforcement. Before CHOICE, employers understandably balanced the high cost of enforcement against the odds of securing injunctive relief, often leading to a reluctance to litigate. However, with CHOICE, the likelihood of injunctive relief is substantially increased because the statute eliminates that discretion from judicial purview; if the noncompete agreement contains each of the specific statutory requirements, the court must grant the requested injunction, which can only be modified or dissolved if the employee (now defendant) demonstrates by clear and convincing evidence that s/he:
- Is not preparing to engage in, or is not currently engaged in, competing work,
- Is not interfering with customer relationships or
- Using the employer’s confidential information.
CHOICE also codifies the enforcement of “garden leave agreements” which, while less common, are agreements where the employer pays the departing employee for the duration of the noncompete/non solicitation period.
While low wage employees are excluded from CHOICE, the statute empowers enforcement of these agreements at a level not previously seen in the United States. Employers are therefore encouraged to immediately review and update their noncompete and related covenants with their workforce, or if the implementation with current employees is a headwind, at least consider implementation of the new provisions with new hires.
