As jurisdictions around the country continue to impose limitations—or outright bans—on restrictive covenants, Florida is taking a decidedly different approach. The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act (“the Act”) effective as of July 1, 2025 permits employers to use non-compete and garden leave restrictions up to 4 years in length with qualifying “covered employees,” along with other significant changes. While Florida’s existing law was generally favorable to employers seeking to enforce non-compete restrictions, the Act goes even further, making Florida home to the most restrictive non-compete agreements in the employment context.
An Intentionally Broad Scope
The Act applies to any agreement between “covered employers” and “covered employees,” although the latter is specifically defined as including independent contractors. The scope of the Act is intentionally broad: a “covered employee” is any individual earning or expected to earn a salary greater than twice the annual mean wage of the Florida county (1) in which the employer has its principal place of business or (2) where the employee resides, if the employer’s principal place of business is outside Florida. That annual mean wage threshold does not include anything other than base compensation, and is based on statistics published by the U.S. Department of Labor Bureau of Labor Statistics each year. In 2024, depending on the applicable county, that income threshold would range from roughly $80,000 to just under $150,000. A “covered employer” is simply any person or entity that employs (or, in the case of independent contractors, engages) a “covered employee.” Beyond that salary threshold, the Act further requires any covered agreement (whether a garden leave or non-compete restriction) to:
- be expressly governed by Florida law;
- advise the employee in writing of their right to seek counsel prior to execution of the agreement;
- be provided to the employee at least 7 days before offer of employment expires (for new hires) or before the offer to enter into the agreement expires (current employees); and
- have the employee acknowledge in writing their receipt of confidential information or customer relationships during course of employment.
The Non-Compete/Garden Leave Distinction
The Act addresses two types of restrictions—garden leave agreements and non-compete agreements—with slightly different requirements for each. In a garden leave agreement, the employee is required to give an extended notice period, whereby they remain employed but perform no services. Under the Act, that notice period can now be up to 4 years so long as a covered agreement:
- Provides that no services are required from the employee after the first 90 days post-notice;
- Expressly allows the employee to engage in nonworking activities, including during normal business hours, for the non-working portion of the notice period;
- Allows the employee, with the permission of the employer, to work for another employer during the non-working portion of the notice period;
- Allows for a reduction of the notice period by the employer upon 30 days’ advance written notice; and
- Covers the same base salary and benefits that the employee received in the last month before commencement of the notice period (which does not include any discretionary compensation).
The Act’s definition of a covered non-compete, on the other hand, is directed toward traditional post-employment restrictive covenants. Those restrictions can also be up to 4 years in length under the Act but (in addition to the salary and notice requirements set forth above) must provide that the non-compete period is reduced day-for-day by any nonworking portion of a notice period if there is also a garden leave provision in place, i.e. an employer cannot have a 4-year garden leave provision followed by another 4-year noncompete. Moreover, the covered non-compete must expressly be limited to the provision of services that the employee provided in the 3 years prior to termination, or where it is reasonably likely that the employee would use confidential information or customer relationships.
The Act Shifts the Burden on Injunctive Relief
Perhaps the most unique aspect of the Act is the framework it sets forth with regard to injunctive relief. Instead of the typically high bar for a plaintiff employer to qualify for the “extraordinary remedy” of injunctive relief, the Act requires any court, once presented with an application for injunctive relief to stop the breach of a covered agreement, to grant the requested injunction. The burden then shifts to the affected employee: the injunction may only be dissolved or modified if the employee establishes that the (1) the employee will not perform services during the non-compete period that would violate the agreement or that their new employer does not compete with the plaintiff, or (2) that the employer failed to pay the consideration required in the covered agreement (and was given a reasonable opportunity to cure said failure). Notably, the employee must establish as much by a heightened “clear and convincing” standard, and without using any confidential information.[1] Moreover, the Act requires a court to presume that an employee had access to confidential or customer relationships if the employee acknowledged as much in writing, regardless of whether such access actually occurred. The Act provides for fees and costs to be awarded to the prevailing party in any action seeking to enforce an agreement under the Act.
No Effect on Existing Agreements and Exceptions for Healthcare Practitioners
Notably, the Act does not replace or supersede existing Florida law regarding non-competes: if an agreement does not meet the requirements above it is not per se unenforceable, but simply would not be eligible for the enhanced restrictions provided under the Act. The Act does not apply to non-solicitation or confidentiality restrictions, and does not apply to agreements in the context of the sale of a business interest. The Act expressly carves out noncompete and garden leave restrictions on “health care practitioners,” as defined in Florida Stat. § 456.001. That statute, addressed by our colleagues in a prior blog, provides a complicated framework that requires a determination of, among other things, the number of specialists in a particular county as part of enforcement of any non-compete restriction.
Seyfarth Takeaways
So long as a few procedural requirements are obeyed, the Act provides an incredibly powerful tool for Florida employers (or, indeed, any entity employing a Florida resident) to restrict competition after employment, whether through a garden leave clause or a more traditional non-compete provision. The Act’s impact on lawsuits filed to enforce covered agreements will make injunctive relief the norm rather than an extraordinary remedy.
[1] The burden-shifting requirements under the Act apply only to a covered employee. Plaintiffs proceeding under the Act may choose not to seek injunctive relief against an ex-employee’s new employer, considering that this shifted burden likely does not apply to non-parties to the covered agreement in question.