USA – FLORIDA Trends and Developments Contributed by: Stuart Singer and Carl Goldfarb, Boies Schiller Flexner
Florida’s New CHOICE Act Seeks to Enhance Enforcement of Non-Competes In the recently enacted Contracts Honoring Opportu - nity, Investment, Confidentiality and Economic Growth Act (the “CHOICE Act”), Florida – which was already an employer-friendly state – inaugurated an even more pro-employer framework governing non-compete agreements for covered workers. The CHOICE Act’s provisions apply to companies based in Florida, regardless of where the worker resides, if the non-compete agreement complies with the other requirements and “is expressly governed by the laws” of Florida (see Florida Statutes (Fla.) Section 542.45 (1)(b)). The new Act, which took effect in July 2025, also applies to workers with their principal place of work in Florida, even if they work for a non-Florida company and even if their non-compete specifies that it is governed by the laws of another state (Id at Sec - tion 542.45 (1)(a)). Under Florida’s prior non-compete statute, which remains in effect for workers not covered by the CHOICE Act, an employer must prove that the con - tractual constraint is reasonably necessary to protect the employer’s legitimate business interests, includ - ing demonstrating that it is reasonable in duration and geographic scope (Id at Section 542.335 (1)(c)). Restrictive covenants lasting more than two years are presumed unreasonable (Id at Section 542.335 (1)(d)1). The CHOICE Act eliminates the requirement to prove that the constraint furthers a legitimate busi - ness interest, eliminates the geographic restriction, and caps non-compete agreements at a duration of four years (Id at Section 542.43 (6)). Effectively flipping the typical burden of proof, the CHOICE Act requires courts to issue preliminary injunctions to enforce a covered agreement unless the employee demonstrates by clear and convinc - ing evidence that the agreement is unenforceable or unnecessary to prevent unfair competition (Id at Sec - tion 542.45 (5)(a)). While the CHOICE Act is designed to greatly increase protection for employers, the Act does include cer - tain protections for workers. The Act requires that the employee “was advised in writing of the right to seek
counsel before execution of the covered non-compete agreement”, and was given a week to review the pro - posed agreement and acknowledged in writing receipt of “confidential information or customer relationships” (Id at Section 542.45 (2)(a)–(b) and 542.45 (3)(a)). The Act also exempts low-paid workers. It applies to “covered workers”, defined as workers earning more than twice the mean wage in the Florida county where the employer has its principal place of business and, if the employer is out-of-state, twice the annual mean wage of the Florida county where the worker resides (Id at Section 542.43 (3)). The new act is intended to encourage companies to invest in Florida (Id at Sec - tion 542.42 – “[t]he Legislature further finds that pre - dictability in the enforcement of contracts described in this part encourages investment in this state”). The CHOICE Act also creates covered “garden leave” agreements. Under such agreements, employees remain on an employer’s payroll for up to four years after giving notice of their resignation (Id at Section 542.43 (5)). During the garden leave, employees often perform little to no work but are prevented from providing services to competitors, thereby allowing employers to protect their business interests by pre - venting an employee from competing. As the CHOICE ACT is so new, courts have not yet had occasion to construe it. Given the sharp differ - ence between Florida law and the law in more worker- friendly states, the Act will inevitably spawn a slew of conflicts about its enforcement. Certain likely conflicts are considered below. Enforcing The CHOICE Act in Florida Against Workers in an Employer-Friendly State A growing number of states – California, Minnesota, North Dakota and Oklahoma, as well as the District of Columbia – block non-competes completely unless tied to the sale of a business or in similar circum - stances. Given how pro-employer Florida non-compete law is, Florida companies are likely to draft non-compete agreements providing for venue in Florida and appli - cation of Florida law. Workers being sued in Florida under the CHOICE Act can challenge the venue or
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