How Florida’s CHOICE Act Reshaped Non-Compete Enforcement
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Florida’s CHOICE Act took effect on July 1, 2025, and it did not replace the state’s existing non-compete statute. It added a second track beside it. Codified as Part II of chapter 542 at sections 542.41 through 542.45, the Act gives employers who satisfy a short list of conditions four-year restrictive covenants and a preliminary injunction the court must enter. Everything outside its definitions still runs through section 542.335.
For covered employers, the fight moved from whether a non-compete is reasonable to whether the employee can dissolve an injunction that has already issued.
What Did Florida’s CHOICE Act Actually Change?
It changed leverage. Under section 542.335, the party seeking enforcement must plead and prove a legitimate business interest and that the restraint is reasonably necessary to protect it. A qualifying CHOICE Act agreement instead does not violate public policy as a restraint of trade under section 542.18 or as an attempt to monopolize under section 542.19, is enforceable according to its terms, and on the employer’s application draws a mandatory preliminary injunction.
The safe harbor answers restraint-of-trade attacks, not ordinary contract defenses, so restrictive covenant enforcement turns on the document.
Who Counts as a Covered Employee?
A covered employee is an employee or individual contractor who earns or is reasonably expected to earn a salary greater 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 based outside Florida.
The definitions in section 542.43 carry traps:
- Salary means base compensation on an annualized basis, plus the fair market value of non-cash benefits. It excludes health care, severance, and retirement benefits, expense reimbursement, profit distributions, discretionary awards, and indeterminable compensation such as tips, bonuses, and commissions.
- Variable pay does not count, so a producer with a $95,000 base and $180,000 on target may fall outside it.
- Individual contractors are covered, which matters for firms using contract talent.
- Health care practitioners as defined in section 456.001 are carved out.
- Both benchmarks are Florida counties, and the figure differs by county. Document the calculation.
Employees below the threshold stay under the older statute, as do their non-compete and non-solicitation agreements.
How Long Can a Covered Non-Compete Last?
Up to four years after employment ends, within the geographic area the agreement defines. Either of two roles qualifies: one where the employee would provide services similar to those provided in the three years before the non-compete period, or one where it is reasonably likely the employee would use the employer’s confidential information or customer relationships.
If garden leave also applies, the non-compete period is reduced day for day by any nonworking portion of the notice period. Only nonworking days offset, so the combined restraint tops out near four years and 90 days rather than eight, and only a conforming garden leave agreement earns the credit.
Compare the older baseline. For a postterm covenant not predicated on trade secrets and not tied to a sale of the business or an equity interest, section 542.335 presumes six months reasonable and over two years unreasonable. Tie it to such a sale and the presumptions become three and seven years, which governs most departing equity partners.
What Is a Covered Garden Leave Agreement?
Garden leave is an advance notice arrangement of up to four years. The employee agrees not to resign before the notice period ends, and the employer agrees to retain the employee at the same salary and benefits paid in the month before it began. “Benefit” is narrow: health, life, or disability insurance at the same cost to the employee.
Section 542.44 then requires the agreement to provide four things:
- After the first 90 days, the employee need not provide services.
- The employee may engage in nonwork activities at any time, including business hours.
- The employee may work elsewhere for the rest of the period with the employer’s permission.
- The employer may shorten the notice period on at least 30 days’ written notice.
Garden leave is not severance. It is continued employment, which is why the payroll obligation is the provision most likely to be tested. We introduced the Act and garden leave last year; the offset analysis above controls.
What Must the Agreement Say to Qualify?
These are conditions of the safe harbor, not drafting preferences. Both instruments require delivery of the agreement at least seven days before the offer expires and written advice of the right to seek counsel. Both require a written acknowledgment, but not the same one:
- Garden leave requires the employee to acknowledge receipt of confidential information or customer relationships.
- The non-compete requires the employee to acknowledge that employment will involve them.
The non-compete must also carry the day-for-day offset clause. Get the acknowledgment right and a court must presume access to confidential information or customer relationships in an enforcement action under these sections. The presumption does not travel to a separate trade secret misappropriation claim or replace the confidentiality and non-disclosure agreements in place.
Why the Injunction Provisions Are the Real Story
On application by a covered employer, section 542.45 says a court must preliminarily enjoin the employee from providing services to anyone else, and must separately enjoin the company hiring that employee. The order comes first, and the opposing side must dismantle it.
A court may modify or dissolve it only if the employee proves by clear and convincing evidence, on nonconfidential information, one of three things:
- The employee will not perform work similar to the services provided in the prior three years and will not use confidential information or customer relationships.
- The employer failed to pay the promised consideration and had a reasonable opportunity to cure.
- The hiring business is not engaged in, and is not planning or preparing to engage in during the non-compete period, business activity similar to the employer’s in the agreement’s geographic area.
Two provisions favor the employer. Confidential material must be filed under seal, and injunctive relief is not exclusive, so a prevailing employer may also pursue damages on claims such as breach of contract and tortious interference. The prevailing party also recovers reasonable attorney fees and costs.
What Happens When an Agreement Misses a Requirement?
It does not become void. It falls back. Section 542.45 closes by stating that any action regarding a restrictive covenant that does not meet the Act’s definitions “is governed by s. 542.335.”
The Act contains no grandfather clause, and the signing date is not the test. Legacy forms land on the older statute because they cannot satisfy the seven-day delivery, the written advisory, or the acknowledgment.
Two applicability prongs matter to multistate and remote employers. Section 542.45 reaches an agreement with an employee whose primary place of work is in Florida “regardless of any applicable choice of law provisions,” and separately an agreement with a Florida-headquartered employer expressly governed by Florida law. Where either prong applies, the section governs over conflicting law. That makes remote work and geographic restrictions a threshold question and changes how firms handle transitioning executives who relocate.
Does the Federal Picture Still Matter?
Yes. The Federal Trade Commission’s non-compete rule was set aside in 2024, the Commission acceded to vacatur in September 2025, and the rule left the Code of Federal Regulations in February 2026. The FTC still pursues non-competes case by case, with consent orders barring enforcement against thousands of workers and warning letters to health care and staffing firms.
Satisfying the CHOICE Act is not a federal safe harbor. That exposure sits mostly in agreements outside the Act, since federal scrutiny has centered on broad covenants covering large numbers of lower-paid workers. Our review of the FTC’s retreat covers the shift.
What Should Florida Employers Do Now?
- Segment the workforce against the county threshold using base compensation only, and keep the math.
- Rebuild the paper. The seven-day delivery, the written right-to-counsel advisory, and the correct acknowledgment are all conditions.
- Match the tool to the role. Garden leave costs payroll from day one. A non-compete costs nothing until enforcement, though nonpayment of consideration is one of the three grounds for dissolution.
- Audit legacy forms against the conditions, not their signing dates. Under the older statute, client goodwill is one of the enumerated interests.
No reported Florida decision construing the CHOICE Act has been identified as of August 2026, so the text is the only guide. Employers who paper the conditions correctly keep the Act’s injunction procedure available, changing the posture of everything from a lateral hire to suing a former employee who took a customer list.
Talk to a Florida Business Litigation Attorney
Jimerson Birr represents Florida employers in restrictive covenant disputes, trade secret claims, and injunction proceedings, and defends companies accused of hiring in breach of a competitor’s agreement. Our business litigation attorneys draft, audit, and enforce non-competes, garden leave agreements, and confidentiality agreements for professional services firms. Forms that predate July 1, 2025 are due for review.