Florida Adopts the New CHOICE Act Impacting Noncompete and Garden Leave Agreements for High-Earning Employees

As of July 1, 2025, a new Florida law has taken effect that governs covered noncompete agreements for certain high-earning employees and covered “garden leave agreements” for employees who continue to receive compensation from their employer after giving notice of their intent to resign and are restricted from competing during the notice period. The new law is titled the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act, now referred to as the CHOICE Act (Fla. Stat. §§ 542.41-542.45).

Under the CHOICE Act, except for healthcare practitioners who are exempt from the statute, 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 in which he employer maintains its principal place of business, or the Florida county in which the employee resides if the employer’s principal place of business is not in Florida.[1]

The CHOICE Act permits “covered noncompete agreements” to restrict a covered employee from working for another employer for up to four years within the geographic area defined in the noncompete restriction if the covered employee would provide similar services in the new role or it is reasonably likely to use confidential information or customer relationships.[2] An employer may enforce a covered noncompete agreement if (1) the employee was advised, in writing, of the right to seek legal counsel before signing the noncompete agreement and was provided at least seven days to review the agreement; (2) the employee acknowledged, in writing, that in the course of employment the employee would receive confidential information or customer relationships; and (3) the noncompete agreement provides that the noncompete period is reduced day-for-day by any nonworking portion of the notice period of a covered garden leave agreement between the employee and employer, if applicable.[3]

The CHOICE Act permits “covered garden leave agreements” in situations where the employer must retain the employee on payroll for a period of up to four years but cannot assign work to the employee. An employer may enforce a garden leave agreement if (1) the employee was advised, in writing, of the right to seek legal counsel before signing the garden leave agreement and was given at least seven days to review the agreement; (2) the employee acknowledges, in writing, the receipt of confidential information or customer relationships; and (3) the garden leave agreement provides that after the first ninety days of the notice period (the date when the employee provided written notice of intent to resign), (a) the employee does not have to provide services to the employer, (b) the employee may engage in nonwork activities at any time during the remainder of the notice period, and (c) the employee may work for another employer while still employed by the employer during the remainder of the notice period, if the employee receives permission from the employer. [4]

Importantly, the CHOICE Act creates a presumption that covered noncompete and garden leave agreements that are reasonable in geographic scope are enforceable and places the burden on the employee to show that the agreements should not be enforced. The statute also empowers employers to obtain an injunctive relief against an employee subject to either agreement, and courts must preliminarily restrain a covered employee from working for another employer during the covered noncompete or notice period. [5] The court also may only modify or dissolve an injunction if the covered employee establishes by clear and convincing evidence that (1) the employee will not use confidential information or customer relationships; (2) the former employer failed to pay the salary or grant the benefits provided for in a covered agreement; or (3) the new employer does not engage in similar business activity within the geographic area.[6]

In sum, the CHOICE provides enhanced protections and remedies for Florida-based employers if high-earning employees are violating, or may violate, noncompete agreements or garden leave agreements. Thus, covered employers and employees should ensure to educate themselves on their respective rights and duties and to consult counsel to guide them if a potential dispute arises.

[1] Fla. Stat. § 542.43(3).

[2] Fla. Stat. § 542.43(6).

[3] Fla. Stat. § 542.45(2).

[4] Fla. Stat. § 542.44(2).

[5] Fla. Stat. § 542.44(5); Fla. Stat. § 542.45(5).

[6] Id.