Florida’s CHOICE Act Takes Permitted Employer Protections to a New Level

At a Glance

• Although Florida law has been considered noncompete friendly for some time, the CHOICE Act takes permitted employer protections to a new level, making lengthy garden leave and noncompete provisions per se permissible for individuals who earn more than a relatively modest threshold and have access to and work with confidential information.
• Effectively flipping the typical burden of proof, the CHOICE Act provides that courts must preliminarily enjoin a covered employee from providing services to any business, entity or individual other than the covered employer during the noncompete period upon the application of a covered agreement.

Bucking the trend of restricting or banning noncompete agreements, effective July 3, 2025,¹ Florida enacted the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act, providing employers two new avenues to restrict Florida employees as they exit their employers.

Summary of the CHOICE Act

Under the CHOICE Act, Florida employers may enter into covered agreements if their principal place of business is in Florida or if an employee works primarily in Florida. Covered employees under the Act include employees and independent contractors, so long as they are not classified as a “healthcare practitioner” under Florida law and meet the following threshold compensation: salary (excluding discretionary incentives or awards or anticipated but indeterminable compensation, like bonuses or commissions) that is greater than twice the annual mean wage of either (a) the county where the company has its principal place of business; or (b) the county where the employee resides if the employer’s principal place of business is not in the state. By way of reference, the statewide annual mean was $62,990 in 2024.

Types of Agreements

The CHOICE Act addresses two types of restrictive agreements: “garden leave” and “noncompete” agreements. For either such agreement, the CHOICE Act requires the employee (a) to be advised of the right to seek counsel prior to executing the agreement and (b) to receive at least seven days to review the agreement before execution. Employees must also acknowledge in writing that they will receive confidential information or information about customer relationships while employed.

Garden leave agreements can require an individual to provide up to, but no more than, four years of advance notice before terminating their employment or contractor relationship, with the individual agreeing not to resign before the end of such notice period. In exchange, the employer must agree to retain the individual for the duration of such notice period and to continue paying the individual the same salary and providing the same benefits that the individual received in the last month before the commencement of the notice period. Note, however, that the covered employer is not obligated to provide discretionary incentive compensation or benefits during the notice period, which could make such agreements particularly enticing in industries like financial services where most employee compensation is discretionary or incentive. Such a garden leave agreement must also provide that:

1. After the first 90 days of the notice period, the individual does not have to provide services to the covered employer.
2. The individual may engage in nonwork activities at any time, including during normal business hours, during the remainder of the notice period.
3. The individual may, with the permission of the covered employer, work for another employer while still employed by the covered employer during the remainder of the notice period.
4. The employer may reduce the garden leave agreement notice by providing at least 30 days’ advance notice in writing to the individual.

With respect to a noncompete agreement, the Act provides that an employer may prohibit an employee, for a period not to exceed four years and within the geographic area defined in the agreement, from assuming a role with or for another business, entity or individual:

(a) In which the covered employee would provide services similar to the services provided to the covered employer during the three years preceding the noncompete period; or

(b) In which it is reasonably likely the covered employee would use the confidential information or customer relationships of the covered employer. 

Note that a noncompete period must be reduced day-for-day by any nonworking portion of the notice period pursuant to a covered garden leave agreement, if applicable.

Remedies

The CHOICE Act provides that courts must preliminarily enjoin a covered employee from providing services to any business, entity or individual other than the covered employer during the noncompete period upon the application of a covered agreement. The Act only permits courts to modify or dissolve the injunction if a covered employee proves by clear and convincing evidence based on nonconfidential information that:

• the employee will not perform similar work during the restricted period or use confidential information or customer relationships;
• the employer failed to pay the salary or benefits required under a covered garden leave agreement², or failed to provide consideration for a noncompete agreement, after the employee provided a “reasonable opportunity” to cure the failure; or
• the prospective employer is not engaged in (or preparing to engage in) a similar business as the covered employer within the restricted territory.

The CHOICE Act provides that the prevailing party is entitled to reasonable attorney’s fees and costs. In addition, the Act specifies that such injunctive relief is not an exclusive remedy, and a prevailing covered employer is entitled to recover all available monetary damages for all available claims.

Key Takeaway

Although Florida law has been considered noncompete friendly for some time, the CHOICE Act takes permitted employer protections to a new level, making lengthy garden leave and noncompete provisions per se permissible for individuals who earn more than a relatively modest threshold and have access to and work with confidential information. Florida employers thus should consider whether to take advantage of the new law with current or future employees and independent contractors to enhance protection of their confidential information and customer relationships.