Effective July 3, 2025, the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act significantly enhances employer protections under certain noncompete and garden leave agreements, creating a presumption that covered noncompete and garden leave agreements are reasonable, enforceable, and do not violate public policy. The law establishes Florida as having one of the strongest noncompete enforcement provisions in the country.

Effective Date:

The CHOICE Act applies only to noncompete and garden leave agreements entered on or after July 1, 2025. Existing agreements are unaffected.

Who is Covered:

The CHOICE Act applies to agreements with “covered employees,” defined as “an employee or individual contractor who earns or is reasonably expected to earn a salary  greater than twice the annual mean wage of the county in this state in which the covered employer has its principal place of business, or the county in this state in which the employee resides if the covered employer’s principal place of business is not in this state.” The term covered employee excludes a person classified as “health care practitioner” as defined by Fla. Stat. § 456.001. The term “salary” includes the annualized base salary and “the fair market value of any benefit other than cash,” but explicitly excludes from the calculation anticipated compensation such as bonuses and commissions and certain benefits (e.g., health insurance, severance, retirement).

When the Act Applies:

The Act applies only to covered noncompete and garden leave agreements with either:

• A covered employee who maintains a primary place of work in Florida, or
• An employer whose principal place of business is in Florida and where the agreement is governed by Florida law.

Covered Noncompete Agreements

Noncompete agreements covered under the CHOICE Act can extend up to four years, extending the prior statutory presumption by two years.

Under the CHOICE Act, a covered noncompete agreement is “fully enforceable” provided the following requirements are satisfied:

• The covered employee was advised in writing of the right to consult legal counsel and provided a minimum of seven days to review the noncompete agreement before signing;
• The covered employee acknowledges in writing that, during the employment, he or she will receive confidential information or substantial client relationships; and
• The covered noncompete agreement states that the non-compete period will be reduced day-for-day by any overlapping, nonworking portion of a concurrent garden leave period.

Covered Garden Leave Agreements

The CHOICE Act also addresses covered garden leave agreements, which is defined as a written agreement or part of a written agreement between an employer and a covered employee where the employer and covered employee agree to provide advance notice of up to four years, before terminating the employment or contractor relationship. During this notice period, the covered employer agrees to retain the covered employee for the duration of the notice period and to continue paying the covered employee his or her base salary and benefits, but the covered employee is not entitled to any discretionary compensation. During the first 90 days of the garden leave period, an employer may require the covered employee to continue working. But a covered employee may engage in nonwork activities at any time thereafter.

Under the CHOICE Act, a covered garden leave agreement is “fully enforceable” provided the following requirements are satisfied:

• The covered employee was advised in writing of the right to consult legal counsel and provided a minimum of seven days to review the garden leave agreement before signing;
• The covered employee acknowledges in writing that, during the employment, he or she will receive confidential information or substantial client relationships; and
• The covered garden leave agreement provides that (i) the covered employee does not have to provide services to the employer after the first 90 days of the notice period, (ii) that the covered employee may engage in non-work activities during the remainder of the notice period, (iii) the covered employee may, with the permission of the employer, work for another employer for the duration of the notice period, and (iv) the garden leave agreement notice period may be reduced during the notice period if the employer provides at least 30 days’ advance written notice to the covered employee.

Enforcement of Covered Agreements

In addition to creating a presumption that covered noncompete and garden leave agreements are reasonable, enforceable, and do not violate public policy, the CHOICE Act makes it more straightforward for employers to seek to enjoin alleged violations.  Specifically, upon application, courts must grant preliminary injunctions to enforce covered agreements unless the covered employee proves, by clear and convincing evidence, the agreement is unenforceable or unnecessary to prevent unfair competition.  The covered employee may seek to demonstrate this by establishing that: (i) the covered employee will not perform similar work during the restricted period or use confidential information or customer relationship; (ii) the covered employer failed to pay the salary or benefits required under a covered garden leave agreement or failed to provide consideration for a covered noncompete agreement, and the covered employer had a reasonable opportunity to cure the failure; or (iii) the subsequent employer is not engaged in, or preparing to engage in, a similar business as the covered employer within the restricted geographic area.

Further, with respect to garden leave agreements, if the covered employee engages in “gross misconduct,” an enforcing employer may reduce the salary or benefits or “take other appropriate action” without such activity constituting a breach of the covered agreement. Finally, an employer who prevails in its enforcement action is entitled to recover its monetary damages and attorneys’ fees and costs.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.