Enforcing a Non-Compete Agreement in Florida: What Employers Can Do

When a former employee breaks a non-compete agreement in Florida, the employer’s options include an injunction, money damages, claims against the new employer, and a possible award of attorney’s fees. Which of those tools you can use, and how fast, depends first on which Florida statute governs your agreement.

What Can an Employer Do When an Employee Violates a Non-Compete?

An employer can sue to enforce the covenant and ask the court to stop the competing work while the case proceeds. Florida’s restrictive covenant statute directs courts to enforce a valid covenant “by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions.”

Depending on the facts, remedies can include:

• A temporary and then permanent injunction
• Money damages for breach of the agreement
• Claims against a competitor that knowingly induced the breach, such as tortious interference with a contract
• Trade secret claims when confidential information left with the employee
• A potential award of attorney’s fees and costs if you prevail

Which Florida Statute Governs Your Non-Compete?

Florida now has two tracks. Section 542.335 governs covenants outside the CHOICE Act, sections 542.41 through 542.45, which the Legislature added in 2025 for a narrow group of high earners. The track decides your burden of proof, the injunction standard, and the defenses the employee can raise.

The CHOICE Act reaches a written covered noncompete agreement that meets these requirements:

• A covered employee. The employee earns, or is expected to earn, a salary above twice the annual mean wage of the Florida county where the employer is based, or where the employee lives if the employer is based elsewhere. Bonuses and commissions do not count, and health care practitioners are excluded.
• A qualifying restriction. The agreement lasts no more than 4 years, covers a geographic area it defines, and bars similar work or a role where the employee would likely use confidential information or customer relationships.
• A Florida connection. The employee’s primary place of work is in Florida, or a Florida-headquartered employer’s agreement is expressly governed by Florida law.

To be fully enforceable according to its terms, the agreement must also include a written advisory of the right to seek counsel, delivery at least 7 days before the offer expires, a written acknowledgment that the employee will receive confidential information or customer relationships, and a day-for-day garden leave offset clause.

An agreement that is not a covered noncompete agreement is not void. The closing paragraph of section 542.45 sends it to section 542.335. Our breakdown of how Florida’s CHOICE Act reshaped non-compete enforcement covers the qualification rules.

What Must You Prove Under Section 542.335?

You must show a writing signed by the employee, at least one legitimate business interest, and a restraint reasonably necessary to protect it. Once you make that prima facie showing, the burden shifts to the employee to prove the restraint is overbroad, overlong, or not reasonably necessary.

The statute lists legitimate business interests, including:

• Trade secrets and valuable confidential business information
• Substantial relationships with specific prospective or existing customers, patients, or clients
• Customer, patient, or client goodwill tied to an ongoing business by trade name, trademark, service mark, or trade dress, or to a specific geographic location or marketing area
• Extraordinary or specialized training

The list is not exhaustive. In White v. Mederi Caretenders, the Florida Supreme Court held that home health referral sources may be a protected interest “depending upon the context and proof adduced.” See our posts on protecting referral relationships and enforcing non-competes to protect client goodwill.

Duration matters too. For a former employee’s covenant not predicated on trade secrets or tied to a sale of the business, courts presume 6 months or less reasonable and more than 2 years unreasonable. Against the seller of a business or an equity interest, the presumptions are 3 and 7 years. All are rebuttable. Our employer’s guide to drafting and enforcing non-competition agreements covers time, area, and line of business.

Can You Stop the Competition Before Trial?

Yes. You can ask for a temporary injunction at the start of the case. Outside the CHOICE Act, Florida courts grant one only when the movant shows the four elements: a substantial likelihood of success on the merits, no adequate remedy at law, irreparable harm without the injunction, and service of the public interest.

How Section 542.335 Helps the Employer

Three rules shape the hearing:

• Presumption of harm. The violation of an enforceable covenant creates a presumption of irreparable injury. A presumption shifts a burden rather than erasing the element, and the employee can try to answer it.
• Pro-enforcement reading. Courts must construe the covenant to reasonably protect your legitimate business interests, not narrowly or against the drafter.
• Mandatory bond. No temporary injunction issues without a proper bond, and courts will not enforce a clause waiving the bond or capping its amount.

What Changes Under the CHOICE Act

For a covered agreement, the court “must preliminarily enjoin” the employee from providing services to anyone other than the employer during the noncompete period. The court may then modify or dissolve the injunction only if the employee proves, by clear and convincing evidence based on nonconfidential information, one of a short list of grounds. Confidential material you file must go under seal.

Can You Hold the New Employer Responsible?

It can. A competitor that intentionally interferes with a covenant it knows about may face a tortious interference claim alongside the breach claim against the employee, and an unfair competition and restrictive covenant suit can name both. Send the new employer a copy of the signed agreement early; it helps rebut any later claim that the competitor did not know the restriction existed.

The CHOICE Act goes further. On the employer’s application, the court must also preliminarily enjoin the hiring business from engaging the covered employee. Injunctive relief is not the only remedy, and a prevailing covered employer is entitled to recover “all available monetary damages for all available claims.”

What Defenses Should Employers Expect Under Section 542.335?

Section 542.335 takes several common defenses off the table, but not all of them.

• Hardship. The court may not consider individualized economic or other hardship to the employee.
• Overbreadth. An overbroad restraint is not fatal. The court must modify it and grant only the relief reasonably necessary.
• Your own breach. Courts must consider all other pertinent legal and equitable defenses, which is why unpaid compensation may undermine a non-compete, depending on the contract. Ordinary contract principles also affect enforcement.
• You left the market. Discontinuing the line of business is a defense only if the discontinuance did not result from the violation.
• Public interest. Courts must weigh the effect of enforcement on public health, safety, and welfare.
• Standing. An assignee or successor, such as a buyer of the business’s assets, can enforce only if the covenant expressly authorized enforcement by an assignee or successor. A third-party beneficiary must be expressly named.

Under the CHOICE Act, the grounds are narrower and fixed by statute. They include the employer’s failure to pay the promised consideration after a reasonable opportunity to cure.

Who Pays the Attorney’s Fees?

Fees can follow the winner. Under section 542.335, if the contract has no fee provision, the court may award fees and costs to the prevailing party, and it will not enforce a clause limiting that authority. Under the CHOICE Act, the prevailing party is entitled to fees. That exposure runs both ways, so an employer that loses may pay the employee’s fees.

Does the FTC Non-Compete Rule Affect Enforcement?

No. A federal court stopped enforcement of the rule in August 2024, and the FTC’s own rule page now states it is not in effect and not enforceable. Our review of the FTC’s shift after the vote covers what followed.

What Should an Employer Do in the First Two Weeks?

Move quickly. Every week of delay is another week the former employee works your accounts.

1. Pull the signed agreement. Confirm the signature and collect every amendment.
2. Classify it. Decide which statute governs and confirm where the employee primarily works, since remote work affects non-compete agreements.
3. Preserve evidence. Image returned devices and save email and CRM access logs before anything is wiped.
4. Document your interest. List the accounts, information, and training at stake, and check any confidentiality and non-disclosure agreements the employee signed.
5. Send demand letters. Write to the former employee and the new employer, enclosing the covenant.
6. Budget for the case. Plan for any injunction bond the court sets, which section 542.335 makes mandatory, and for two-way fee exposure.
7. File if the competition continues. If customer data left too, see our guide to suing a former employee who took your customer list.

Get Help Enforcing Your Restrictive Covenant

Jimerson Birr’s business litigation attorneys represent Florida employers in restrictive covenant disputes. If a former employee is competing against you, talk to our non-compete and non-solicitation agreement lawyers on the employment law team, or contact us to review your agreement before you act.