CHOICE Act Goes into Effect for Florida Employers

Florida has enacted the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act, found at Fla. Stat. §§ 542.41 – 542.45. The CHOICE Act, which went into effect on July 3, 2025, allows entities  with their primary place of business in Florida to enter and enforce newly enhanced non-compete and garden leave agreements with their employees and contractors. According to Fla. Stat. § 542.42, the purpose of the CHOICE Act is to establish “strong legal protections in contracts” for employers’ confidential information and client relationships, while at the same time encouraging “optimal levels of information sharing and training and development.”

The Fort Lauderdale corporate lawyers at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. are already helping companies navigate the Act’s complex requirements, especially when drafting agreements for high-earning employees and contractors based in Florida. Contact our office today to learn more about your company’s options under the CHOICE Act.

Covered Garden Leave Agreements

Fla. Stat. § 542.43(5) defines a covered garden leave agreement as a written agreement between a covered employee and covered employer in which:

• Each party must provide up to four years of notice before terminating the employment or contractor relationship (meaning the terminating party must give the other party up to four years to prepare for the end of the relationship);
• The employee may not resign during the notice period; and
• The employer must retain the employee for the notice period and continue paying them the same salary and benefits received in the last month before the notice period began. However, the employer is not obligated to provide discretionary incentive compensation or benefits or to require the employee to continue performing any work during the notice period.

Requirements for the Employee and Employer

A covered employee is an employee or individual contractor who:

• Earns (or is reasonably expected to earn) a salary greater than twice the annual mean wage of the applicable county. This threshold is calculated based on the county where 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.

A covered garden leave agreement is valid under the CHOICE Act if either: (1) the covered employer’s principal place of business is in Florida and the agreement expressly states it is governed by Florida law, or (2) the covered employee maintains a primary place of work in Florida.

Notably, the CHOICE Act specifically excludes healthcare practitioners from the definition of covered employees.

Requirements for the Covered Garden Leave Agreement

Covered garden leave agreements are not violative of public policy or an unlawful attempt to monopolize trade or commerce, as well as fully enforceable under the CHOICE Act, so long as they meet the following requirements:

• The employee receives a notice in writing of his or her right to seek counsel before signing the agreement;
• The employee receives notice of the proposed agreement at least seven days before the offer of employment or the offer to enter an agreement expires, as applicable. This seven-day period allows the employee time to review and consider the agreement terms before acceptance.
• The employee acknowledges receipt of confidential information or customer relationships in writing; and
• The covered garden leave agreement provides the following:
  • After the first 90 days of the notice period, the employee does not have to provide services to the employer;
  • The employee may engage in nonwork activities at any time during the remainder of the notice period;
  • The employee may, with the permission of the employer, work for another employer while still employed during the remainder of the notice period; and
  • The employer may reduce the garden leave notice period (the up-to-four-year period during which the employee remains employed) at any time during that period, provided the employer gives the employee at least 30 days’ written advance notice of the reduction.

Covered Non-Compete Agreements

Fla. Stat. § 542.43(6) defines a covered non-compete agreement as a written agreement between a covered employee and covered employer in which:

• The employee agrees not to do the following for up to four years within the geographic area defined in the agreement:
  • Not to assume a role within or for another business, entity, or individual:
    • In which the employee would provide services similar to those provided to the employer during the three years before the non-compete period; or
    • In which it is reasonably likely that the employee would use the employer’s confidential information or customer relationships.

Requirements for the Employee and Employer

The requirements for the employee and employer in a covered non-compete agreement under the CHOICE Act are the same as for those in a covered garden leave agreement. In other words, the employee must earn or reasonably be expected to earn a salary greater than twice the annual mean wage of the applicable county. The employer must also have its principal place of business in Florida, and the agreement must expressly state that it is governed by Florida law, or the employee must maintain a primary place of work in Florida.

Requirements for the Covered Non-Compete Agreement

Covered non-compete agreements are not violative of public policy or an unlawful attempt to monopolize trade or commerce, as well as fully enforceable under the CHOICE Act, so long as they meet the following requirements:

• The employee receives a notice in writing of his or her right to seek counsel before signing the agreement;
• The employee receives notice of the proposed agreement at least seven days before the offer of employment or the offer to enter an agreement expires, as applicable.
• The employee acknowledges receipt of confidential information or customer relationships in writing; and
• The agreement provides that if the employee is also subject to a covered garden leave agreement, the non-compete period will be reduced day-for-day by any time during the garden leave notice period when the employee was not required to work (typically after the first 90 days of garden leave).

Breach of Covered Garden Leave and Non-Compete Agreements

Suppose an employer seeks to enforce a covered garden leave or non-compete agreement. Under the CHOICE Act, the court must issue a preliminary injunction enjoining the employee from providing any services to any other business, entity, or individual, other than the employer, during the notice period. The court can modify or dissolve the injunction only if the employee establishes the following based on nonconfidential information and by clear and convincing evidence:

• During the notice period, the employee will not perform any work similar to the services provided to the employer during the three years before the notice period began, or use confidential information or customer relationships of the employer; or
• During the notice period, the employer has failed to pay or provide the salary and benefits provided for in the covered garden leave agreement (or consideration for the non-compete agreement) and has had a reasonable opportunity to cure the failure; or
• For non-compete agreements only, the business, entity, or individual seeking to employ or engage the employee is not engaged in, and is not planning or preparing to engage in during the non-compete period, business activity similar to that engaged in by the employer in the geographic area specified in the non-compete agreement.

In enforcing a covered garden leave or non-compete agreement, the court must seal any information the employer deems confidential. The CHOICE Act also creates a legal presumption that the employee has access to confidential information or customer relationships if he or she has acknowledged, in writing, access to or receipt of such access.

The employer who prevails in this type of enforcement suit is entitled to all available monetary relief in addition to the injunction described above, including reasonable attorney fees and costs. Additionally, if the employee engages in gross misconduct, the employer may reduce the salary or benefits or take other appropriate action during the notice period. Any such reduction or other action will not constitute a breach of the agreement.

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Frequently Asked Questions (FAQ)

How does the CHOICE Act affect existing non-compete or garden leave agreements signed before July 3, 2025?

The CHOICE Act applies to agreements entered into on or after its effective date. Employers and employees should review older agreements to determine whether they meet the new statutory definitions or require revisions to ensure enforceability under the updated framework. Furthermore, non-compete agreements with healthcare practitioners that predate the CHOICE Act may still be legally valid.

Can a Florida-based employer use a CHOICE Act agreement with remote employees who live and work outside Florida?

Yes. A CHOICE Act agreement only requires that the employer have its principal place of business in Florida and expressly state that it is governed by Florida law. This provision presumes that a CHOICE Act agreement would be valid for a remote employee who lives and works outside of Florida. However, this provision assumes that the CHOICE Act preempts other states’ laws concerning non-compete agreements. As a result, enforcing a CHOICE Act agreement against a remote employee, particularly if they live in a state with restrictions or bans on non-compete agreements, is likely to lead to litigation.

Are employers required to offer both a garden leave and a non-compete agreement under the CHOICE Act?

No. Employers may choose to offer either a covered garden leave agreement, a covered non-compete agreement, or neither—depending on their business needs and the employee’s role. Each agreement type has distinct requirements and legal effects, but neither is mandatory under the CHOICE Act.

Navigating Florida’s CHOICE Act requires careful attention to statutory definitions, notice requirements, and enforceability standards. Whether your business is drafting new agreements or reviewing existing ones, an experienced legal advisor can help you stay compliant while protecting your interests. An Aventura business transactions attorney at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. is here to guide you. Our team provides strategic, personalized legal guidance to help your business thrive. Call us today at (954) 966-2112 or contact us online to schedule a confidential consultation.