On July 1, 2025, the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act went into effect. While some industry leaders had encouraged Governor Ron DeSantis to veto the bill after it was passed by the Florida legislature, he chose not to, and the CHOICE Act was codified as Florida Statutes §§ 542.41-542.45.
This landmark workplace legislation introduces comprehensive guidelines and protections for two distinct types of employment agreements for highly compensated employees: Covered Garden Leave Agreements and Covered Noncompete Agreements.
Covered Employees and Covered Employers
Covered Garden Leave Agreements and Covered Noncompete Agreements can only be used with certain employees pursuant to the CHOICE Act. To be considered a "covered employee" under the CHOICE Act, the person must be an employee or individual contractor who earns or is reasonably expected to earn a salary greater than twice the annual mean wage of the Florida county in which the covered employer has its principal place of business, or the Florida county in which the employee resides if the covered employer's principal place of business is not in Florida.
The most recent data from the Florida Office of Economic Development lists the 2023 annual mean wage as $64,438 for Pinellas County and $71,414 for Hillsborough County. A covered employer under the CHOICE Act is any individual or entity that employs or engages a covered employee.
It is important to note that employers may not enter into a Covered Garden Leave Agreement or Covered Noncompete Agreement with health care practitioners, as that term is defined in Florida Statute § 456.001.
Covered Garden Leave Agreements
A Covered Garden Leave Agreement requires the covered employer and the covered employee to agree to provide up to, but no more than, four (4) years of advance, express notice before terminating the employment or contractor relationship. During this notice period, the covered employee is required to perform regular duties only for the first 90 days. After 90 days, covered employers retain the right to relieve covered employees from active duties while continuing to fulfill their salary and benefits obligations.
Covered employers may shorten or waive the notice period by providing at least 30 days' written notice to the covered employee. Covered employees under a Covered Garden Leave Agreement also have the option to pursue alternative employment during the notice period, provided they obtain explicit permission from their current employer.
To be enforceable, prospective covered employees must be given at least 7 days before an offer of employment expires. Current covered employees must be given at least 7 days before the date that an offer to enter into a Covered Garden Leave Agreement expires. In addition, both prospective and current employees must receive written advisement of the right to consult an attorney before signing and acknowledge in writing that they have received or will receive confidential information or exposure to sensitive customer relationships.
Covered Noncompete Agreements
Covered Noncompete Agreements impose specific restrictions following a covered employee's departure from the company. These agreements legally prohibit employees for up to four (4) years post-employment from assuming a role in which they would either perform services similar to those they performed in the three (3) years prior to their termination of employment or be reasonably likely to use confidential information or customer relationships of the covered employer.
Unlike Covered Garden Leave Agreements, covered employers must clearly define the geographic scope of the noncompete restrictions to ensure enforceability. Additionally, under the CHOICE Act, any non-working period of a covered garden leave notice directly reduces the noncompete restriction's overall duration. As with Covered Garden Leave Agreements, employers must: provide prospective and current employees with at least seven (7) days to review the proposed Covered Noncompete Agreement; give written notification advising employees of their right to consult with legal counsel before signing; and obtain written acknowledgment confirming that the covered employee has received or will receive confidential business information or exposure to customer relationships of the covered employer.
Enforcement
Both Covered Garden Leave Agreements and Covered Noncompete Agreements offer robust, legally enforceable protections, enabling employers to secure preliminary injunctions and recover monetary damages, including attorney's fees and costs, in the event of breaches.
If a covered employer seeks to enforce a valid Covered Garden Leave Agreement or a Covered Noncompete Agreement in court, the CHOICE Act requires the court to preliminarily enjoin a covered employee from providing services to any business, entity, or individual other than the covered employer during the notice or noncompete period, unless the covered employee can present clear and convincing evidence that no violation will occur or that the covered employer failed to pay or provide the required compensation or benefits. Upon request by the covered employer, the court must also preliminarily enjoin a business, an entity, or an individual from engaging the covered employee during the employee's notice or noncompete period.
In the event that a covered employee engages in gross misconduct during the notice period of a Covered Garden Leave Agreement, the covered employer may also reduce the employee's salary or benefits for the remainder of the notice period.
Importantly, the CHOICE Act does not limit the enforceability of non-disclosure, non-solicitation, non-competition, and other restrictive covenants that are currently valid under Florida Statute § 542.335.
Next Steps
As with all new legislation, initial litigation will likely shape how the courts interpret and enforce these agreements. In the meantime, employers should review their current employment agreements and restrictive covenants to ensure that they clearly and precisely outline all terms, including notice periods, geographic scopes, and post-employment restrictions.
Florida employers should also consult legal counsel to determine whether existing agreements should be updated to comply with the CHOICE Act and to develop strategies for handling potential breaches, including pursuing injunctions, recovering damages, and addressing employee misconduct. Proper documentation, transparent communication with employees, and strict adherence to the CHOICE Act's notification and advisement mandates will be essential for maintaining enforceability.
Taking proactive steps will enable employers to safeguard confidential business information, protect customer relationships, and uphold legitimate business interests more effectively in the evolving legal landscape.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
