Florida’s CHOICE Act Reshapes Employment Agreements: What Employers Must Know

By Mason Kay

Florida has taken a bold step in transforming the landscape of employment contracts with the passage of the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act (the “CHOICE Act”). According to the Florida Legislature, businesses currently face “significant global risks” in protecting trade secrets, confidential data, and customer goodwill.

Effective July 1, 2025, the CHOICE Act provides Florida employers with powerful new tools to address these concerns. Specifically, the statute is designed to:

• Encourage and protect business investment in Florida.
• Promote the secure sharing of private information with key employees.
• Provide greater predictability in the enforcement of restrictive covenants.

Who Is Covered?

The CHOICE Act applies only to “covered employees” and “covered employers.” A covered employee is any employee or independent contractor who earns, or is expected to earn, a salary more than twice the average annual wage of the county where the employer has its principal place of business. For out-of-state employers, the employee’s county of residence is used to calculate the relevant salary threshold. Salary does not include health care benefits, severance pay, retirement benefits, expense reimbursement, distribution of earnings and profits not included as compensation for personal services, discretionary incentives or awards, or anticipated but indeterminable compensation, including tips, bonuses, or commissions. Covered employers, on the other hand, are any individual or entity that employs or contracts with a covered employee. Notably, the statute explicitly states that health care practitioners as defined in Section 456.001, Florida Statutes, are not included within these terms. With coverage defined, the Act sets forth clear requirements for enforceable covered noncompete agreements.

What Are Covered Noncompete Agreements?

Covered noncompete agreements are written contractual provisions in which a covered employee agrees not to compete with the covered employer for up to four years after termination. The restriction is limited to a specified geographic area and applies to roles where the employee could either (1) provide services similar to those performed for the employer during the three years preceding the noncompete period, or (2) use the employer’s confidential information or customer relationships. The Act expressly provides that these agreements remain fully enforceable and do not violate public policy as a restraint of trade, even where a conflicting choice-of-law provision exists, so long as (1) the employee’s primary place of work is in Florida or (2) the employer’s principal place of business is in Florida and the agreement is expressly governed by Florida law. To be enforceable, they must also include key terms such as:

• Advance Notice: The employer must give the employee at least seven days to review the noncompete agreement and advise them in writing of the right to seek legal counsel.
• Acknowledgment of Confidential Information: The employee must acknowledge in writing that they will receive confidential information or customer relationships.
• Adjustment for Garden Leave: The noncompete period must allow for day-for-day reduction by any nonworking portion of the notice period, pursuant to a covered garden leave Florida law agreement between the employee and the employer.

What Are Covered Garden Leave Agreements?

A covered garden leave agreement is a written contractual provision obligating a covered employee to give advance notice of resignation, up to four years, in exchange for continued salary and benefits during that time. Ultimately, these agreements allow employers to manage transitions and protect proprietary knowledge. Even where a conflicting choice-of-law provision exists, they remain fully enforceable and do not violate public policy as a restraint of trade so long as (1) the employee’s primary place of work is in Florida or (2) the employer’s principal place of business is in Florida and the agreement is expressly governed by Florida law. Key aspects of these agreements include:

• Advance Notice: The employer must give the employee at least seven days to review the garden leave agreement and advise them in writing of the right to seek legal counsel.
• Acknowledgment of Confidential Information: The employee must acknowledge in writing that they will receive confidential information or customer relationships.
• Continued Compensation: The employer must agree to retain the employee for the duration of the notice period and pay the same base salary and benefits the employee received in the last month of regular employment. The employer is not obligated to provide discretionary incentive compensation or benefits or have the employee continue performing any work during the notice period.
• Resignation Restriction: The employee must agree not to resign before the end of the notice period.
• Freedom to Pursue Other Interests: The employee must be permitted, after the first 90 days of the notice period, to (1) refrain from providing services to the employer, (2) freely engage in non-work activities, and (3) accept other employment with the employer’s permission.
• Period Reduction: The employer must be permitted to shorten the notice period at any time by providing the employee with at least 30 days’ advance written notice.

How Are These Agreements Enforced?

If a covered employee breaches a covered noncompete or garden leave agreement, Florida courts must preliminarily enjoin the employee from providing services to any business, entity, or individual other than the covered employer during the notice period. The court may modify or dissolve the injunction only if the employee establishes, by clear and convincing evidence and based on nonconfidential information, that (1) the employee will not perform, during the notice period, any work similar to the services provided to the employer during the three years preceding the start of the notice period and will not use the employer’s confidential information or customer relationships; or (2) the employer has failed to provide the required salary and benefits during the notice period and has had a reasonable opportunity to cure the failure.

Likewise, upon application by a covered employer, a court must preliminarily enjoin any business, entity, or individual from employing or engaging a covered employee during the notice period. The injunction may be modified or dissolved only if the business, entity, or individual establishes, by clear and convincing evidence and based on nonconfidential information, that (1) the employee will not provide any services similar to those performed for the employer during the preceding three years and will not use the employer’s confidential information or customer relationships; or (2) the business or individual is not involved in, and is not planning or preparing to participate in, any business activity similar to that of the employer during the notice period.

Importantly, the injunctive relief available under the statute is not exclusive. A prevailing employer is entitled to recover all available monetary damages on all available claims, and any prevailing party is entitled to reasonable attorney fees and costs. Additionally, if the employee engages in gross misconduct during the garden leave period, the employer may reduce or withhold compensation and benefits or take other actions without breaching the agreement.

How Does This Affect Employers?

The CHOICE Act operates alongside Florida’s existing restrictive covenant statute, Section 542.335, which still applies to (1) nonsolicitation clauses, (2) nondisclosure agreements, and (3) sale-of-business covenants. However, the Act marks a significant shift in Florida’s approach to noncompete and garden leave agreements. For employers, it provides robust protection for trade secrets, confidential information, and customer relationships. For employees, particularly high-wage earners, it imposes new obligations, namely longer notice periods and expanded post-employment restrictions.

Given the CHOICE Act’s broad scope, employers must strictly follow its procedural requirements, including mandatory notices, confidentiality acknowledgments, and precise contract terms. To protect your business interests and ensure compliance, consult Clark Partington for strategic guidance in reviewing and updating your employment agreements under this new Florida law.