Florida’s CHOICE Act Offers Employers Two New Types of Agreements to Prevent Unfair Competition by Highly Compensated Former Employees

On June 18, 2025, the Florida legislature presented Governor Ron DeSantis with the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act. It is expected that Governor DeSantis will not veto the bill, and the CHOICE Act will become law on July 4. This legislation creates some of the strongest non-compete protections for employers in the country. The CHOICE Act creates two new categories of enforceable non-compete agreements for highly compensated employees. This law is effective for non-complete agreements signed on or after July 1, 2025, and does not apply to any pre-existing non-compete agreements.  

The CHOICE Act applies only to agreements with covered employees – defined as employees or independent contractors earning a base salary at least twice the annual mean wage for the specific county where the employee works or where the employer has its principal place of business. Notably, this calculation is based on base salary and some benefits but specifically excludes bonuses and commissions. In addition, the Act applies only to either (1) a covered employee who maintains a primary place of work in Florida or (2) an employer whose principal place of business is in Florida and where the agreement is governed by Florida law.

The CHOICE Act allows for employers and covered employees to enter into either (1) non-compete agreements or (2) “garden leave agreements” whereby the employee receives salary and certain benefits throughout the “notice” or “garden leave” period but is prohibited from competing with the employer. In either case, compliant agreements may now impose non-compete periods as long as four years. This marks a dramatic expansion, as Florida law previously carried a statutory presumption that only restraints involving trade secrets or the sale of a business could ordinarily exceed two years. Moreover, during the restricted period in a garden leave agreement, the employer may unilaterally reduce the term of the agreement and any corresponding obligation to continue to pay the employee upon at least 30 days’ written notice. 

The CHOICE Act imposes certain procedural requirements for new agreements to be covered:

• The covered employee is advised, in writing, of the right to seek counsel;
• The covered employee must acknowledge receipt of confidential information or customer relationships; and
• The covered employee is given seven days to consider an offer to enter into an agreement.

Further strengthening non-compete provisions, the new law also creates robust enforcement mechanisms for employers. The Act requires that upon application by an employer, a court must preliminarily enjoin the covered employee from providing services to a competing employer during the term of the notice or non-compete period unless the covered employee can demonstrate that they are not violating their agreement or that the employer has previously breached the agreement by clear and convincing evidence. The Act further provides for mandatory preliminary injunctions against any businesses hiring a covered employee to work in a competing position that violates the agreement under the same pro-enforcement standards. An employer can also recover all monetary damages and, similar to current Florida law, the prevailing party in any action to enforce a covered agreement is entitled to reasonable attorney’s fees and costs.

Importantly, the CHOICE Act does not repeal, replace, or revise Florida’s current law governing non-competes and other restrictive covenants – Fla. Stat. § 542.335. If a new restrictive covenant agreement does not qualify as a “covered noncompete agreement” or “covered garden leave agreement” under the Act, then it will not be afforded the enhanced employer-friendly provisions of the CHOICE Act and will instead be governed by the pre-existing Florida law. Similarly, any restrictive covenant agreements entered into prior to the July 1, 2025 effective date of the Act will continue to be governed by pre-existing law.

With this new law, Florida has significantly expanded the scope of potential agreements restricting employees from competing with their former employers in Florida, as well as dramatically strengthened enforcement mechanisms. Florida employers (and other employers that have employees primarily working in Florida) should consult with counsel to determine whether they can take advantage of the new forms of non-compete agreements made possible by the CHOICE Act. Further, employers should review their internal hiring practices to ensure they do not violate this new law when hiring candidates bound by a non-compete or garden leave agreement covered by the CHOICE Act.