By: Scott Atwood, Esq.

Florida’s CHOICE Act, which took effect on July 1, 2025, brings significant updates to how employers can use Non-Compete and Garden Leave Agreements. The law changes both the way these agreements are written and how they’re enforced, giving Florida businesses more clarity when protecting their operations and relationships.

I spoke with Evan Williams at Gulfshore Business magazine about this shift in Florida law. The article highlights several key issues that employers should be considering right now.

Expanded Scope and Presumption of Enforceability

The CHOICE Act, short for the Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act, doubles the enforceable duration of restrictive covenants in Florida. Employers may now include Non-Compete and Garden Leave provisions that extend up to four years, provided they comply with the statute’s technical requirements.

Perhaps the most meaningful change is the creation of a presumption of enforceability. If the agreement qualifies under the Act, Florida courts are now required to grant preliminary injunctions without requiring employers to show irreparable harm. To overcome that presumption, a former employee must meet a significantly higher evidentiary standard.

The new law reflects the ongoing effort to support employers through favorable legislation. It also prompts companies to take a close look at their current agreements to ensure they meet the updated requirements.

Key Requirements to Comply

To benefit from the protections of the CHOICE Act, employers must ensure their agreements:

• Are in writing;
• Provide at least seven days for employee review before signing;
• Include a written notice of the employee’s right to consult an attorney; and,
• Contain a specific acknowledgment that the employee will receive access to confidential information or relationships during employment.

These requirements are non-negotiable. If one element is missing, the agreement likely falls outside the scope of the Act and with it, the employer loses the new enforcement advantages.

The law also applies only to employees earning more than twice the annual mean wage in their Florida county, either where the employer is located or, if the employer works out of state, where the employee resides. This requirement will exclude most employees, inasmuch as the threshold for coverage will be well in excess of $100,000 in most counties in Florida.

Garden Leave: New but Not Entirely Unfamiliar

The CHOICE Act also introduces a formal Garden Leave structure, allowing employers to place employees on paid leave for up to four years following notice of termination. During the first 90 days, the employee must remain available to work on a regular basis. After that, the employer may limit the employee’s duties or allow them to seek outside employment, but only with permission.

Like Severance Agreements that pay for time off, this provision may help manage executive transitions, protect client relationships or establish cooling-off periods before a former employee rejoins a competitor. The new law permits much longer periods of non-competition and non-solicitation using “garden leave,” but it may not work for most employers due to the cost associated to it. These agreements likely will be limited to top-end executives who removal from the job market will support the expenditure of a salary for no work.

Looking Ahead

While the CHOICE Act delivers greater certainty for employers, it is also likely to generate new legal challenges. Questions remain about how the law will interact with federal antitrust doctrine and how Florida courts will interpret its more aggressive provisions. In my conversation with Gulfshore Business, I noted that although the Legislature took a clear position, the full impact will unfold through case law in the months and years ahead.

For employers, they should know that this new law supplements, and does not replace, the current restrictive covenant statutory language.  Its focus is on higher-paid, key employees. In certain cases, these agreements may be appropriate to extend the length of the restrictive covenants for highly-compensated employees. For current employees, they can replace the agreements that are currently in place, should the employee be a covered employee under the new statute. Agreements should be reviewed immediately so that a determination should be made as to whether the new law works best for the employer’s needs.

Employers needing assistance with Non-Compete Agreements may be reach me at scott.atwood@henlaw.com for a consultation.