Florida’s CHOICE Act: What It Means for Your Business and the Use of Garden Leave Agreements

CHOICE Act

Florida’s new CHOICE Act, as provided under Section 542.43, Florida Statutes, took effect on July 1, 2025. The Act represents a major shift in how businesses can structure post-employment restrictions for key employees. Short for “Creating Honorable Opportunities and Incentives for Career Employment,” the CHOICE Act expands the enforceability of noncompete agreements and formalizes the use of garden leave provisions under Florida law. Most notably, the law allows noncompete agreements to remain enforceable for up to four years, doubling the previous default period, so long as they meet statutory requirements. It also removes the prior requirement that a geographic restriction be “reasonable” instead, allowing any defined geographic area. Courts must now issue injunctive relief for qualifying restrictive covenants, removing much of the judicial discretion that previously allowed judges to deny enforcement based on equitable considerations. Covered agreements are presumed enforceable and not against public policy, which can only be rebutted with clear and convincing evidence that enforcement is unnecessary to prevent unfair competition.

The Act defines a “covered employee” as any employee or contractor who works primarily in Florida, or for an employer with its principal place of business in Florida, and who earns, or is reasonably expected to earn, more than twice the average salary in the county. Healthcare practitioners, as defined under various Florida statutes, are excluded from coverage. Employers must advise employees in writing to seek legal counsel prior to signing, allow at least seven days for review, and obtain a written acknowledgment that the employee will receive confidential information or have access to customer relationships. The agreement must also state that the employee will not assume a role involving similar services or the likely use of such information during the noncompete period.

Garden Leave Agreements

One of the most important tools supported by the CHOICE Act is the garden leave agreement. In a garden leave arrangement, an employee remains on the company’s payroll for a defined period, generally thirty to ninety days, after giving notice of resignation or being terminated. During this time, the employee is prohibited from working for a competitor or starting a competing business but is still technically employed and paid. This arrangement provides the employer with a transition period to protect client relationships, preserve confidentiality, and limit the immediate sharing of sensitive information. Garden leave agreements are particularly effective for executives, managers, and other employees with access to proprietary data or high-value contacts. For example, if your CFO resigns, you could require a 60-day garden leave to wrap up sensitive projects and prevent them from immediately joining a competitor.

Under the CHOICE Act, every day spent on garden leave counts toward reducing the length of the employee’s total noncompete period. This means a four-year noncompete could be reduced by the length of the garden leave if applicable. Notice requirements mandate that prospective employees receive a proposed noncompete at least seven days before an offer of employment expires, and that current employees get the same seven-day review period before an offer to sign expires.

How Florida SMBs Should Respond Now

Florida businesses, especially those in professional services, healthcare administration, finance, and technology, should reevaluate their current employment contracts in light of the CHOICE Act. The statute’s elimination of the “reasonableness” requirement for geographic scope allows broader protections, as long as the area is clearly defined. Enforcement provisions are highly favorable to employers. Upon application, courts must issue preliminary injunctions against violations. The burden is then on the new employer or employee to prove, by clear and convincing evidence, that the services are not similar, confidential information will not be used, or that the geographic restriction does not apply. Prevailing employers may recover monetary damages, and either party can recover attorney fees and costs.

Incorporating garden leave provisions can enhance an employer’s ability to safeguard trade secrets and goodwill. Legal counsel should review and update restrictive covenants to ensure compliance with the CHOICE Act’s requirements. The law’s changes move Florida toward one of the most employer-friendly jurisdictions for restrictive covenants. While beneficial for protecting business interests, these expanded powers require careful drafting and strict compliance to ensure enforceability.

Given the mandatory injunctive relief provisions, the removal of the “reasonableness” limitation, and the presumption of enforceability, the CHOICE Act significantly increases the legal weight of noncompete agreements in Florida. Employers should strategically adapt to leverage these changes, while employees should fully understand the potential scope and duration of restrictions before entering into such agreements. To safeguard your business interests, strengthen your competitive position, and better understand your options, contact Jimerson Birr.