Florida CHOICE Act 2025: Key Changes to Non-Compete Agreements for High-Earning Employees

Written By Alex Santos

The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act, effective July 1, 2025, significantly impacts how non-compete agreements are handled between employers and certain high-earning employees in Florida. While Florida already had a statutory framework for enforcing restrictive covenants, the CHOICE Act introduces new provisions that are generally more employer-friendly and aim to strengthen enforceability.

Key Implications for Employers Under the CHOICE Act

Here are some key implications for employers in Florida:

1. Expanded Enforceability and Presumption of Validity

Presumption of Enforceability

The CHOICE Act creates a presumption that "covered" non-compete agreements and "covered" garden leave agreements are enforceable and do not violate public policy. This shifts the burden to the employee to prove by "clear and convincing evidence" that the agreement is unenforceable, a high legal standard.

Mandatory Injunctive Relief

Courts are now largely required to issue preliminary injunctions to stop a "covered employee" from violating a covered non-compete or garden leave agreement, upon application by the employer, unless the employee can meet the high burden of proof for an exemption.

No "Reasonableness" Assessment for Geographic Scope (for covered agreements)

Unlike the prior law, which required courts to assess the reasonableness of geographic restrictions, the CHOICE Act generally eliminates this requirement for covered non-compete agreements.

2. New Categories of Agreements: Covered Non-Competes and Garden Leave Agreements

"Covered Employees" Defined

The Act applies to "covered employees" which are generally employees or independent contractors who earn more than twice the annual mean wage of the Florida county where the employer has its principal place of business (or where the employee resides if the employer is out-of-state). The compensation threshold varies by county, but typically ranges from $80,000 to nearly $150,000. Notably, healthcare practitioners are expressly excluded from the CHOICE Act's scope and remain subject to the existing, more restrictive non-compete laws for their profession.

Extended Durations

For covered non-compete agreements, the permissible duration has been extended to up to four years post-employment, a significant increase from the previously common two-year period.

"Garden Leave" Agreements

The Act formally introduces "covered garden leave agreements." These agreements allow employers to require up to four years of advance notice before an employee terminates their employment. During this period, the employee remains on the payroll, receives full salary and benefits, but may not be required to perform services after the first 90 days. The employee cannot work for another employer without the current employer's written permission. This allows employers to "shelf" high-value employees to prevent them from immediately joining competitors.

Interplay between Non-Competes and Garden Leave

If both a covered non-compete and a garden leave agreement are in place, the non-compete period must be reduced day-for-day by any non-working portion of the garden leave notice period.

3. Procedural Requirements for Enforceability

Notice of Right to Counsel

For both covered non-compete and garden leave agreements to be enforceable, employers must provide the prospective or current employee with written notice of their right to seek legal counsel at least seven days before the offer to enter into the agreement expires.

Acknowledgement of Confidential Information

The employee must also acknowledge in writing that they have received or will receive confidential information or have customer relationships during their employment.

4. Stronger Remedies for Employers

Automatic Preliminary Injunctions

As mentioned, courts are compelled to issue preliminary injunctions against violating employees and even against the new employer (unless the new employer can prove by clear and convincing evidence that it is not engaged in similar business activity).

Attorney's Fees and Costs

The prevailing party in any action to enforce a covered agreement is entitled to reasonable attorney's fees and costs.

Monetary Damages

Employers are entitled to recover all available monetary damages.

5. What Employers Should Consider

Review and Revise Existing Agreements

Employers should review their current non-compete and restrictive covenant agreements to determine if they can be updated to comply with and take advantage of the CHOICE Act's provisions, particularly for "covered employees."

Implement New Procedures

Employers will need to ensure they adhere to the new procedural requirements, such as providing the required seven-day notice and obtaining written acknowledgment regarding legal counsel and confidential information.

Strategic Use of Garden Leave

Consider whether "garden leave" agreements are beneficial for protecting legitimate business interests and retaining key talent.

Understand Exclusions

Remember that the CHOICE Act does not apply to all employees, particularly healthcare practitioners, who remain under different statutory guidelines.

Seek Legal Counsel

Given the complexities and significant implications of the CHOICE Act, employers should consult with legal counsel to ensure their restrictive covenant agreements and practices are compliant with the new law.

Summary

In essence, the CHOICE Act solidifies Florida's position as a state highly favorable to employers seeking to enforce non-compete and restrictive covenant agreements, particularly for their higher-earning employees. It provides clearer pathways for enforcement and stronger remedies for employers who adhere to its requirements.

Ready to navigate the CHOICE Act and protect your Business? You’re one call away from the insights you need to stay ahead and protect your most valuable assets with us. Book a consultation to get expert guidance on updating your non-compete agreements, ensuring compliance, or leveraging the new provisions to your advantage.

Alex Santos
As Managing Member of Collabor8 Learning, my role is to build and execute learning and development strategies for organizations seeking to improve the return they are getting from their training programs. We focus on four core areas: performance analysis, instructional design, e-learning development, and learning management. As a hybrid HR/instructional design consultancy, Collabor8 Learning partners with your team to leverage today's training technologies to increase the productivity of your people. I am a senior human resources and training executive with over 17 years of progressive experience. My work in private industry has focused heavily on the development of learning and development systems that transform employee performance from ordinary, to remarkable. I accomplish this by combining organizational development strategies and tactics to blended learning programs with line of sight alignment to clearly defined performance goals. Additionally, I launched Miami Payroll Center in conjunction with my brother and sister-in-law in 2004 to meet the payroll needs of small to mid-size organizations. Our consultative approach to guiding new entrepreneurs as well as more seasoned business owners in alleviating the pain of payroll processing has created a very successful and growing payroll processor in the market. Specialties: Instructional Systems Design, E-Learning, Learning Management Systems, Payroll, Organizational Development, Employee engagement, HR Strategic Planning, Talent Acquisition & Management, Leadership Development, Coaching & Mentoring, Employment Branding Proposition & Positioning, Workforce Planning, Performance Management, and Leadership Development.
https://www.bynimble.com
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