Christina on Non-Competition: Florida Bill Sets Stage for Four-Year Non-Compete Agreements for Certain Employees

Last month (April 2025), the Florida legislature passed a bill titled “The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act.” The CHOICE Act (or Act) seeks to enlarge the permissible duration of covered non-compete agreements for certain covered employees for up to four years. In addition to adding new provisions regarding noncompetes, the bill also provides guidance on garden leave agreements (I'll discuss this in a separate post). The bill is awaiting Governor DeSantis's signature. If/once signed, the bill will take effect on July 1, 2025. Let’s break down who should be concerned about the Act and what the Act adds to noncompete law.

1.      Who is a "covered employee"?

The Act defines “covered employee” 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." "Annual mean wage" means "the most recent annual mean wage as calculated by the [US DOL BLS]. . .for all occupations in this state." In Miami/Ft. Lauderdale/West Palm Beach, the annual mean wage as of May 2024 is $66,310 (so, two times is $132,620). The Act carves out health care practitioners.

2.     What is a “covered noncompete agreement”?

It is “a written agreement. . .between a covered employee and a covered employer in which, for a period not to exceed 4 years and within the geographic area defined in the agreement, the covered employee agrees not to assume 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 3 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.”

3.      When is the noncompete fully enforceable?

The Act provides that a covered noncompete agreement is fully enforceable according to its terms if:

• the employee was advised, in writing, of the right to seek counsel before signing the covered noncompete within the proper time period discussed below in 4.;

• the employee acknowledges, in writing, that the employee will receive confidential information or customer relationships; and

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

4.      What kind of notice must a “covered employee” receive?

The employer must provide a proposed noncompete agreement to a prospective employee at least 7 days before an employment offer lapses or if already an employee, then at least 7 days before an offer to enter into a covered noncompete agreement expires.

5.      What happens if an employee breaches the noncompete agreement?

The Act provides that upon application by a covered employer, the court must preliminary enjoin a covered employee from providing services to the new employer. It is then on the employee to try to modify or dissolve the injunction by clear and convincing evidence that the employee will not perform any work similar to the services provided to the covered employer during the 3-year period preceding the commencement of the noncompete period or use confidential information or customer relationships. The employee can also establish that the employer has failed to pay the consideration provided for in the noncompete agreement and had a reasonable opportunity to cure. Alternatively, the employee can show that the new employer is not engaged in or planning to engage in business activity similar to the covered employer in the geographic area.

The Act also requires that upon application, a court must enjoin a business from engaging the covered employee. The business can modify or dissolve the injunction by clear and convincing evidence that the employee will not provide any services similar to those provided to the covered employer during the 3-year period preceding the non-compete period or by showing the business is not engaged in or planning to engage in business activity similar to that engaged in by the covered employer in the geographic area.

6.      Attorney's Fees

The Act allows for reasonable attorney fees and costs for the prevailing party.

7.      Self-help Remedy Without Court Intervention

The Act provides that if the covered employee engages in gross misconduct against the covered employer, the employer can reduce salary or benefits or take other appropriate action, which reduction may not be considered a breach of the covered noncompete. Typically, if an employer has failed to compensate the employee, the employee can use the employer's failure as a prior breach to cure the employee's breach of the noncompete agreement. This new provision will allow the employer to reduce the pay without it counting as a prior breach and thereby excusing the employee from the noncompete.

8.      What if the noncompete agreement doesn’t meet this new definition?

Then, the noncompete will be governed by Florida Statute Section 542.335.