On July 3, 2025, the “Contracts honoring Opportunity, Investment Confidentiality and Economic Growth” (CHOICE) Act came into effect in Florida. While much of the country is taking an employee friendly approach to non-competes by restricting them, Florida has gone the opposite direction. The CHOICE Act expands an employer’s ability to enforce non-compete and garden leave agreements.
This Act is part of Florida’s larger aim to attract businesses to the state. The Bill’s sponsor, Florida Senator Tom Leek, stated that “Florida is poised to become one of the finance capitals of the world … you have to provide those businesses protection on the investment that they’re making.” However, the universality of this sentiment is unclear. Although the Bill had strong support from business interests, some labor advocates and legal scholars were big detractors. Notably and surprisingly, Governor Ron DeSantis did not sign or veto the Bill, he instead waited for it to become law by default. This decision appears unusual for a man who fashions himself as staunchly pro-business and may indicate some hesitance to ruffle feathers in this area going forward.
What does the CHOICE Act do?
The Act applies to employees or individual contractors who earn or are expected to earn a salary greater than twice the annual mean wage of the county in Florida where the employer has its principal place of business, or in which the employee resides if the employer is not principally based in Florida. Health care workers are excluded.
Under the Act, covered employees may be subject to non-compete and garden leave agreements lasting up to 4 years. A covered garden leave agreement is an agreement in which the employer agrees to keep paying an existing employee who agrees not to appear at work or produce any work. The covered employee simultaneously agrees not to take any other employment during this period. A covered noncompete agreement is an agreement, typically entered into at the start of employment, in which an employee agrees not to work for a competitor within a specified geographic area for a period of time. It is important to note that Florida has not changed its law on non-solicitation agreements which often accompany non-competes, meaning a covered employee may have a non-compete agreement of 4 years while only having a non-solicitation agreement up to 2 years. This may cause inconsistencies.
The CHOICE Act also places a larger burden on the employee. Under the Act, when a former employer applies to court seeking enforcement of a non-compete agreement the presumption is that an injunction should be issued. This places the burden on the former employee or new employer to prove with clear and convincing evidence that the injunction is unwarranted. To succeed, it must be shown that the covered employee’s new job does not involve similar services provided in the three-year period before the employee separated; does not use the former employer’s confidential information; and does not use the former employer’s customer relationships. Alternatively, if the business activity is like that of the former employer, it may be shown that the business looking to hire the covered employee does not conduct business nor plans to conduct business in the geographic area specified in the agreement.
For the covered agreements to be enforceable, the CHOICE Act requires covered employees to be advised in writing to seek counsel before signing the agreement and given at least seven days to review the agreement. Furthermore, the covered employee must acknowledge in writing receipt of confidential or customer relationship information.
It is still unclear how this law will be applied in Florida courts, and enforcement may be difficult at the federal level.
Federal applicability?
Floridian restrictive covenants which do not fall under the CHOICE Act are governed by Section 542.335(1)(j) of the state’s general restrictive covenant statute. Some federal courts have declined to apply the presumption of irreparable harm found in section 542.335(1)(j) on grounds that it is not in line with federal equitable principles on injunctive relief. Since the CHOICE Act goes further requiring the automatic issuance of an injunction, this may not be applicable at the federal level. Thus, employers will likely find more success filing enforcement lawsuits in Florida state courts.
Covered employers should review their current agreements with competent counsel. While compliance may not be difficult, failure to comply may invalidate your agreement.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
