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Rachael Luken Carp Helena I. Poch Ciechanowski Anastasia Dyak Michael J. Fortunato
June 27, 2025
We often hear in the zeitgeist that non-competes are unenforceable. For instance, California has banned them, and the FTC recently tried to ban them on a national level. That preconceived notion of enforceability is what makes Florida’s expected new law so jaw-dropingly bold.
At the time of this publication, Florida’s Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act is still awaiting signature by Governor Ron DeSantis. If, as expected, Governor DeSantis signs the landmark non-compete legislation into law, it will take effect July 1, 2025. Following the path trail-blazed by Kansas (see article here), Florida is charting a course that doubles down on employer protections and runs perpendicular to the path forged by a litany of other jurisdictions, starting with California and continuing, most recently, with Wyoming, all of which have banned, or attempted to ban non-competes . If enacted, the CHOICE Act will do more than just reinforce Florida’s pro-business stance—it will go further than any other state has gone before in expanding the enforceability of non-compete agreements, effectively making Florida a national outlier or leader depending on your perspective. The question becomes – by reshaping the legal landscape surrounding restrictive covenants in the employment context, will the Act benefit or undermine Florida’s ability to attract businesses (and Florida employers’ ability to attract talent) in the long run?
The CHOICE Act expands existing Florida law on restrictive covenants, with the stated goal of providing greater predictability to both employers and employees. The key points of the new law are as follows:
Covered Employees: The Act applies only to “covered employees,” generally meaning a worker (employee or individual contractor) earning more than twice the annual mean wage in the Florida county where the employer’s principal office is located (or if the employer isn’t based in Florida, twice the mean wage of the Florida county where the employee resides). The law explicitly excludes bonuses, tips, and commissions from the definition of “salary,” raising the question whether certain high earners, such as commissioned sales people or financial advisors, are excluded from the definition of “covered employee.” The law also expressly excludes licensed health care practitioners from the definition of covered employee.
Four-Year Non-Competes: In a significant expansion of existing law, the CHOICE Act authorizes non-compete agreements lasting up to four years for covered employees, without any limitations on geographic scope (as long as the written agreement contains some description of the geographic scope of the restrictive covenant). The non-compete can restrict the covered employee from providing services similar to those the employee provided to the covered employer during the prior three years, or from accepting a position in which it is reasonably likely the employee would use the confidential information or customer relationships of the covered employer (shorthand for the inevitable disclosure doctrine).
Four-Year Garden Leave: The CHOICE Act also employs the concept of a “covered” garden leave agreement, which is essentially a paid, non-working leave or notice period. In a covered garden leave arrangement, a covered employee who intends to resign must provide advance notice—potentially up to four years (“the Notice Period”)—during which the employer continues to pay the employee’s base salary and benefits (excluding discretionary compensation) while generally relieving them of active job duties. Throughout the Notice Period, a covered employee cannot work for anyone else (or start their own business) unless the employer consents. The Notice Period can be shortened in the employer’s discretion, upon 30 days advance written notice to the covered employee. An employer can stop paying or reduce an employee’s base salary and benefits during the Notice Period if the covered employee engages in gross misconduct.
For a non-compete or garden leave provision to be enforceable under the new law, employers must provide the employee (or prospective employee) with at least seven days to review the agreement prior to execution, and the written agreement must (1) confirm that the covered employee will have access to confidential information and (2) inform them that they have the right to seek counsel before signing.
The CHOICE Act permits employers to include garden leave and non-compete provisions in the same agreement, but the duration of the non-compete will be reduced by the length of the garden leave. For example, if an employee serves a one-year garden leave, that year would count toward (and thus shorten) any subsequent non-compete period. Like the restrictive covenants permitted under existing law, the new law requires Florida courts to presume the enforceability of garden leave and non-compete provisions that comply with the statutory requirements.
Enjoin First, Ask Questions Later: Perhaps most significantly, the CHOICE Act requires courts to issue preliminary injunctions to enforce non-competes and garden leave provisions, upon application by an aggrieved employer.
For Non-Competes: A court may modify or dissolve the injunction only if the employee proves, with clear and convincing non-confidential evidence, that at least one of the following is true:
For Garden Leave Agreements: A court may modify or dissolve the injunction only if the employee proves, with clear and convincing non-confidential evidence, that at least one of the following is true:
These requirements shift the burden of proof squarely to the employee and give Florida businesses a faster and more predictable enforcement process. Employers can seek damages in addition to injunctive relief, and prevailing parties are entitled to recover reasonable attorney’s fees and costs. Restrictive covenants that fall outside the CHOICE Act (such as non-solicitation provisions and agreements with employees other than covered employees) will still be covered by existing Florida law (§ 542.335).
Mandatory Injunctions: The most critical benefit is that courts will be required to enjoin covered employees accused of violating their agreements, giving employers faster and more predictable legal relief. This means that, prior to obtaining a preliminary injunction, employers will no longer have the burden to establish the traditional legal requirements for injunctive relief and courts will not be required to balance the equities between the interests of the employee and the employer.
Greater Leverage Over Key Talent: The CHOICE Act will give employers the unprecedented ability to sideline high-level employees for up to four years after resignation or notice of resignation, particularly those with access to client relationships and confidential information, even if it doesn’t rise to the level of trade secrets.
Broader Time Horizons: With the option to restrict competition for up to four years (through either a garden leave or non-compete), employers can better protect long-term investments in training and business development.
Restricted Mobility: Covered employees may be barred from joining a competitor or launching their own venture for up to four years, depending on the structure of the agreement.
Mandatory Garden Leave: Employees could be required to give up to four years’ notice before resignation and spend that time on payroll without actively working, which could limit career progression or geographic mobility.
Reduced Legal Recourse: Once a covered agreement is in place, the employee must meet a high evidentiary threshold to challenge its enforcement. The CHOICE Act shifts the burden of proof onto the employee to show why the preliminary injunction should not become permanent.
Wage-Based Applicability: Not every employee will be subject to the CHOICE Act. Employees must earn above a certain salary threshold; commissions and tips are not included in the definition of “salary,” and healthcare professionals are specifically excluded.
While California has penalized employers that include non-competes in their employment agreements, Florida has moved in the opposite direction. Whether viewed as a business-friendly innovation or a limitation on workforce mobility, the CHOICE Act is a major development and one that both employers and employees should watch closely. Employers should give significant thought to the question of whether expanding the scope of their existing non-compete and garden leave agreements will benefit them in the long run or prevent them from attracting key talent.
The authors of this article, Rachael Luken Carp, Helena I Poch. Ciechanowski, and Anastasia Dyak, are members of the Bars of Pennsylvania, New York, and/or New Jersey. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, New York, New Jersey, Florida, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
