On April 24, the Florida Legislature passed House Bill 1219, the “Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act.” The law significantly expands Florida’s employer-friendly approach to noncompete enforcement by establishing presumptions of validity for two types of restrictive covenants: covered garden leave agreements and covered noncompete agreements. These new provisions build on Florida Statute § 542.335, providing employers with greater control over high-earning workers subject to these agreements.
I. Who Is Covered Under the Act?
The CHOICE Act does not apply to all employees. It only governs agreements with “covered employees,” defined as individuals—including independent contractors—who earn or are reasonably expected to earn more than twice the annual mean wage of the county where the employer’s principal place of business is located. If the employee works for an out-of-state or foreign corporation, but lives in Florida, the applicable wage threshold is based on the annual mean wage in the county where the employee resides. Additionally, the CHOICE Act exempts health care practitioners but does not invalidate existing noncompete agreements for those professionals.
II. Covered Garden Leave Agreements
A covered garden leave agreement is one in which an employee agrees to provide advance notice of resignation and remains on payroll with full base salary and benefits during the notice period. The law does not require bonuses or commissions to be included in the compensation during the notice period. Employers may prohibit employees on garden leave from working for them or any other employer, regardless of the type of work performed.
What sets Florida’s law apart is the extraordinary flexibility it gives employers to dictate the length and terms of the notice period. Employers may set the start of the garden leave obligation up to four years before the employee’s termination date. At the same time, the employer retains the unilateral right to shorten or eliminate that obligation by providing 30 days’ written notice to the employee.
III. Covered Noncompete Agreements
The CHOICE Act creates a presumption of enforceability for noncompete agreements that meet specific statutory criteria: the agreement must be signed by the employee, acknowledge access to confidential information or client relationships, confirm that the employee had at least seven days to review the agreement, and the opportunity to consult counsel before signing. Covered noncompete agreements may restrict an employee from competing for up to four years following termination, and although the statute refers to enforcement within the geographic area “defined in the agreement,” the CHOICE Act does not limit how broad that area can be.
If the employee breaches the noncompete agreement, the employer will be entitled to immediate injunctive relief and monetary damages. The injunction may be modified or dissolved if the employee or their new employer proves by clear and convincing evidence—using non-confidential information—that the employee will not perform similar work, the employer breached its obligations under the agreement, or the new employer is not competing within the restricted geographic area. The prevailing party is entitled to attorney’s fees and costs.
IV. What Employers Should Do Next
As of now, Governor Ron DeSantis has not yet signed the CHOICE Act into law. However, if he does sign it, which is expected, the Act is scheduled to take effect on July 1, 2025. In the meantime, employers should proactively review and update their employment agreements to align with the CHOICE Act’s provisions, ensuring compliance once the law becomes effective.
If you have questions or would like to discuss how the CHOICE Act may affect your business, please contact EPGD Business Law in Miami, Florida, at (786) 837-6787 or email us to schedule a consultation.
