Florida CHOICE Act Strengthens Employer Enforcement of Noncompete Restrictions for Covered Employees (Updated)

The Florida CHOICE Act took effect on July 1, 2025, strengthening the enforceability of noncompete restrictions which prevent a “covered employee” from assuming a role with another company where the employee (1) provides services similar to those provided to the former employer or (2) is reasonably likely to use the confidential information of the former employer. For these covered employees, the Act extends the length of noncompete restrictions to four years and mandates courts to issue a preliminary injunction against the new company. Independent contractors are included in the definition of “covered employee.” Healthcare practitioners are excluded from the definition of “covered employee.”

A “covered employee” is one who earns a “salary” of more than twice the “annual mean wage” as calculated by the US Bureau of Labor Statistics for all occupations in the county where the employer has its principal place of business or for foreign businesses, where the covered employee resides. “Salary” excludes bonuses, commissions, healthcare, retirement benefits, and other forms of discretionary or uncertain compensation.

For example, the current minimum salary for a “covered employee” based on the most recent (2023) calculations is:

Alachua:  110,238

Broward:  137,072

Dade:  147,160

Duval:  136,968

Hillsborough:  136,968

Lee:  116,272

Marion:  99,112                                  

Orange:  129,272

St. Johns:  118,560

Walton:  107,848

Rather than supplanting current law under Section 542.335, Florida Statutes, the CHOICE Act introduces new categories of agreements with greater restrictions and strengthens employers’ ability to enforce these agreements. Along with doubling the allowed restricted period to four years, the Act adopts a presumption of enforceability. Instead of requiring the employer to justify the need for enforcement, the covered employee must show why an injunction is not warranted and why the noncompete is unenforceable.

To enforce these provisions against out-of-state employees, the employer should act quickly to file in Florida court first. The strength of Florida’s new law may scare remote employees who work in employee-friendly states and who are contemplating separation. These employees may feel compelled to promptly file for declaratory action in their home state. This would include workers in locations that ban or nearly ban noncompete restrictions or which have a higher salary level for enforcement of noncompete restrictions—states like California, Colorado, Minnesota, North Dakota, Oklahoma, Oregon, and Washington DC.    

To be enforceable under the Act, the noncompete agreement must meet the following requirements:

• The noncompete period must not exceed four years.
• The employer must advise the covered employee in writing of the right to seek counsel before signing and allow the employee at least seven days to consider the agreement.
• The employee must acknowledge in writing that they will receive confidential information or customer relationships during their employment.
• The noncompete period is reduced day for day by any nonworking portion of the notice period under any applicable garden leave provision. A garden leave provision allows an employer to prevent an employee from immediately working for a competitor or accessing confidential information by continuing to pay an employee who is no longer actively working for the employer.

While the Act emphasizes stringent protection of business interests and predictable enforcement, there are other nonlegal considerations. Is a four-year noncompete standard for the industry? How will implementation of a four-year noncompete impact hiring and retention? Can the business afford to raise the base salaries of employees to meet the salary threshold required by the Act? It remains to be seen whether employers can convince highly paid workers to these more restrictive, more enforceable contracts. Careful consideration of a reluctant employee’s particularized concern and careful legal drafting may facilitate the ability to reach such agreement.