Found yourself staring at a non-English agreement form? Most people do not care to read…
Florida’s CHOICE Act: What Changed for Employers Writing Non-Competes
A Florida employer can now hold a high-earning employee to a four-year non-compete, and a court must enjoin that employee unless they can clear a very high bar.
That’s the CHOICE Act, which became law in July 2025. It only helps agreements that follow its steps, though, and plenty of templates still don’t.
This guide covers:
- Who counts as a covered employee
- The steps a qualifying agreement needs
- How CHOICE agreements compare with section 542.335
Who the CHOICE Act Covers
The Act applies to covered employees, a group defined by pay rather than job title. For a Florida-based employer, a worker qualifies by earning, or being reasonably expected to earn, a salary above twice the annual mean wage of the county where the employer has its principal place of business. Independent contractors can qualify too. Health care practitioners are excluded.
Salary means annualized base compensation, and the statute leaves out health benefits, severance, retirement benefits and discretionary pay. So an employee with a modest base and big discretionary bonuses may fall outside the Act.
Before rolling out new agreements, sort your workforce by base salary against the county figure. If you’re in Central Florida, it helps to see how an Orlando small business lawyer at Legal Counsel, P.A. drafts employment contracts and non-compete clauses, since the drafting choices matter as much as the threshold.
The Steps a Qualifying Agreement Needs
The Act rewards process. An employer has to advise the employee in writing of the right to seek counsel and deliver the proposed agreement at least seven days before the offer expires. The employee must acknowledge in writing that the job involves confidential information or customer relationships. The agreement itself has to name a geographic area and cap the restriction at four years.
One drafting detail is easy to miss. If the employee also has a garden leave agreement, the non-compete period must shrink day for day by any nonworking part of the notice period. Garden leave is the Act’s second tool: up to four years of advance notice, with the employee kept on the same salary and benefits and excused from work after the first 90 days.
Say an Orlando software company hands a new director the non-compete on her start date. She never got seven days, so the agreement likely won’t qualify and gets judged under the older rules instead. Some employers bring in a Florida firm that handles business law and litigation to fix their offer process before the next hire.
How CHOICE Agreements Compare With the Old Rules
According to section 542.45 of the Florida Statutes, a court must preliminarily enjoin a covered employee once the employer applies to enforce a qualifying non-compete. The employee can get that injunction modified or dissolved only with clear and convincing evidence, such as proof they won’t do similar work or that the employer didn’t pay what the agreement promised. The same section lets courts enjoin the new employer too. Anything that doesn’t qualify falls back under section 542.335.
| Issue | Section 542.335 | CHOICE Act agreement |
|---|---|---|
| Who it covers | Most restrictive covenants | Covered earners, not health care practitioners |
| Length | Over 2 years presumed unreasonable for former employees | Up to 4 years |
| Burden | Employer proves a legitimate business interest | Employee must rebut by clear and convincing evidence |
| Injunction | Court decides whether to grant one | Court must grant a preliminary injunction |
Older agreements weren’t written with these steps in mind, so they deserve a fresh review before anyone relies on them.
The Bottom Line for Florida Employers
The CHOICE Act gives employers far stronger non-competes for their highest earners, but only when the paperwork and timing are right.
Key Takeaways
- Check each employee’s base salary against the county threshold before choosing a template.
- Give written notice of the right to counsel and a full seven days to review.
- Get a written acknowledgment of confidential information or customer relationships.
Treat non-competes as a process rather than a form, because skipping one step can cost the protection entirely.
Frequently Asked Questions
Are non-competes still enforceable in Florida?
Yes. Florida enforces reasonable restrictive covenants under section 542.335, which requires the employer to prove a legitimate business interest. The CHOICE Act adds a stronger option for high earners, allowing qualifying non-competes of up to four years and requiring courts to issue a preliminary injunction on the employer’s application.
Is a 3 year non-compete enforceable?
It depends on the employee. Under section 542.335, a restraint on a former employee that runs longer than two years is presumed unreasonable. Under the CHOICE Act, a covered employee’s non-compete can run up to four years, as long as the agreement meets the Act’s notice, counsel and acknowledgment requirements.
Can I work for a competitor if I signed a non-compete?
Usually not during the restricted period if the agreement is enforceable. Under the CHOICE Act, a court must enjoin a covered employee unless they prove, by clear and convincing evidence, that they won’t do similar work or use confidential information, or that the new business doesn’t compete in the covered area.
How to get out of non-compete in Florida?
For a CHOICE Act agreement, the employee must prove a statutory exception by clear and convincing evidence, such as the employer failing to pay promised consideration after a chance to cure. Under section 542.335, the employer must first prove the restriction is reasonably necessary to protect a legitimate business interest.
Do I have to tell my employer I’m going to a competitor?
It depends on what you signed. A covered garden leave agreement requires advance notice before you leave, sometimes months or years of it, and some employment contracts require you to disclose a new employer. Review those terms, ideally with a lawyer, before accepting a new offer.