2025 CHOICE Act: Florida Noncompete and Garden Leave Agreements

Effective July 1, 2025, Florida’s Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act significantly reshapes the enforceability of noncompete and introduces garden leave agreements. Particularly, the CHOICE Act strengthens employers’ ability to protect legitimate business interests while imposing stricter restrictions on certain employees. Alongside the CHOICE Act, Florida’s existing noncompete law codified in Section 542.335 of the Florida Statutes continues to govern noncompetes outside the scope of the CHOICE Act.

This post addresses key provisions of the CHOICE Act, details its garden leave provisions, examines its interplay with Florida’s noncompete law under Section 542.335, lists the types of Florida licensed health care practitioners excluded from the CHOICE Act, and offers some recommendations for Florida employers to consider when deciding whether to use the CHOICE Act or default to Section 542.335 for their noncompete agreements.

Key Provisions of the CHOICE Act

1. Expanded Florida Noncompetes

The CHOICE Act permits employers to restrict employees from providing similar services in any geographic area for up to 4 years post-employment. This is a significant expansion from the presumptively reasonable 2-year limit under Section 542.335. By eliminating the requirement for a reasonable geographic scope, the CHOICE Act grants employers greater flexibility to restrict competitive activities beyond Florida’s traditional noncompete law.

2. Covered Employees

The CHOICE Act applies to only to employees covered by this new law.  A “covered employee” is defined an employee or individual independent contractor

HB1219, Section 542.43(3) [alterations added].

Notably, certain Florida licensed “health care practitioners”, as that term is defined under Florida Statutes Section 456.001, are expressly excluded, meaning their noncompete agreements default to Florida’s existing noncompete requirements under Section 542.335.  

3. Covered Employers

A “covered employer” is any business entity, including corporations, partnerships, or sole proprietorships, with a principal place of business in Florida or is operating in Florida, employs Florida covered employees, and has noncompete agreements containing Florida choice-of-law provisions in addition to contractual terms required by the CHOICE Act.

4. Enforcement and Remedies

The CHOICE Act requires courts to issue preliminary injunctions to enforce noncompete agreements unless the employee proves, by clear and convincing evidence, and based on nonconfidential information, one of two things: (i) there is no unfair competition or threat to the employer’s legitimate business interests, or (ii) the employer failed to deliver the promised consideration (e.g., salary, benefits, etc.). 

Additionally, the CHOICE Act allows prevailing employers to recover “all available monetary damages for all available claims” resulting from breaches. This broad damages provision enhances an employer’s potential recovery compared to Section 542.335.

Further, just like Section 542.335, under the CHOICE Act, the prevailing party, whether employer or employee, is entitled to reasonable attorney fees and costs.

Garden Leave Agreements

The CHOICE Act introduces garden leave agreements, allowing employers to place employees on paid leave for up to 4 years while restricting competitive activities. However, employers must ensure that all statutory required garden leave provisions are included in the agreement to take advantage of the maximum 4-year noncompete restriction period.   

Mandatory Garden Leave Provisions

Garden leave agreements are a novel feature of the CHOICE Act, offering Florida employers a flexible tool to manage employee transitions while safeguarding their legitimate business interests, such as valuable confidential information and customer relationships. The legal requirements for a valid garden leave agreement are outlined below.

Agreement Formalities

• The agreement must be in writing and signed by both the employee and employer.

• The agreement must specify it is governed by Florida law.

• Employees must be advised in writing of their right to seek legal counsel.

• Employees must be given a 7-day review period before a job offer expires or the agreement is signed.

• Employees must provide written acknowledgment of receiving confidential information or access to customer relationships.

Noncompete Restriction

• The noncompete restriction cannot exceed 4 years.

• The employee must agree not to assume any roles with another business, entity, or individual to provide the same or similar services or engage in any roles where it’s reasonably likely that they would use the employer’s confidential information or customer relationships in the 3 years prior to the start date of the notice period (addressed below)

Notice and Commitment Periods

• The employee must agree not to resign before the end of the 4-year notice period.

• If either the employer or employee desires to terminate the employment relationship, the terminating party must provide the other with 4 years’ advance written notice.

Continued Compensation

• The employer must agree to continue paying the same salary to the employee throughout the 4 year notice period.

• The employer must agree to provide the same benefits the employee received in the last month before the 4 year notice period began.

• Both the employer and employee must agree that the employer has no obligation to provide the employee any discretionary incentive compensation or additional benefits during the 4 year notice period.

Flexibility After Initial 90 Days

The CHOICE Act expressly provides that no garden leave agreement will be deemed a restraint of trade and shall be enforceable so long as its terms provide that after the expiration of the first 90 days of the 4 year notice period:

• The employee is not required to provide services to the employer.

• The employee may engage in non-work activities at any time, including during the normal business hours of the employer, during the remainder of the 4 year notice period.

• The employee may work for another employer if agreed upon by the current employer, while remaining employed for the remainder of the 4 year notice period.

• The employer may reduce the 4-year notice period at any time during the notice period by providing 30 days’ advance written notice to the employee.

• The employer is not obligated to have the employee perform work during the notice period.

Florida Licensed Health Care Practitioners Exempt From the CHOICE Act

The CHOICE Act expressly excludes Florida licensed health care practitioners from its coverage, meaning they cannot be subject to covered noncompete or garden leave agreements. Instead, restrictive covenants for these professionals are governed by Florida’s existing noncompete law in Section 542.335.

The term “health care practitioner” is defined in Section 456.001(4) of the Florida Statutes, providing that as any person licensed under the specified chapters of the Florida Statutes is deemed a “health care practitioner” exempt from the application of the CHOICE Act.

The below list identifies Florida licensed health care practitioners excluded from the CHOICE Act, ordered alphabetically by profession based on the definition of Section 456.001(4) and related Florida statutes:

• Acupuncturists (Chapter 457)

• Advanced Practice Registered Nurses, including Certified Nurse Practitioners, Certified Registered Nurse Anesthetists, Certified Nurse Midwives, and Clinical Nurse Specialists (Chapter 464)

• Anesthesiologist Assistants (Chapters 458 and 459)

• Athletic Trainers (Chapter 468, Part IV)

• Audiologists (Chapter 468, Part I)

• Certified Radiologic Technologists (Chapter 468, Part IV)

• Chiropractors (Chapter 460)

• Clinical Laboratory Personnel (Chapter 483, Part I)

• Clinical Social Workers (Chapter 491)

• Dentists (Chapter 466)

• Dietitians/Nutritionists (Chapter 468, Part X)

• Electrologists (Chapter 478)

• Genetic Counselors (Chapter 483, Part III)

• Hearing Aid Specialists (Chapter 484, Part II)

• Licensed Practical Nurses (Chapter 464)

• Marriage and Family Therapists (Chapter 491)

• Massage Therapists (Chapter 480)

• Medical Physicists (Chapter 483, Part IV)

• Mental Health Counselors (Chapter 491)

• Midwives (Chapter 467)

• Naturopathic Physicians (Chapter 462)

• Nursing Home Administrators (Chapter 468, Part II)

• Occupational Therapists (Chapter 468, Part III)

• Opticians (Chapter 484, Part I)

• Optometrists (Chapter 463)

• Orthotists and Prosthetists (Chapter 468, Part XIV)

• Pharmacists (Chapter 465)

• Physical Therapists (Chapter 486)

• Physician Assistants (Chapter 458 or 459)

• Physicians (allopathic and osteopathic, Chapters 458 and 459)

• Podiatrists (Chapter 461)

• Psychologists (Chapter 490)

• Registered Nurses (Chapter 464)

• Respiratory Therapists (Chapter 468, Part V)

• Speech-Language Pathologists (Chapter 468, Part I)

The CHOICE Act's exclusion of the above listed health care practitioners means that their noncompetes remain subject to the reasonableness and necessity requirements of Section 542.335.  

CHOICE Act Interplay with Florida's Noncompete Law, Section 542.355

Section 542.335 remains the governing framework for noncompete agreements not covered by the CHOICE Act. Understanding the relationship between these two legal frameworks is crucial for employers, especially in situations s where the CHOICE Act is not applicable or is not a cost-effective option. Several key distinctions and linkages between and among the two are discussed below.

1. Scope of Application

The CHOICE Act applies exclusively to high-earning employees (over twice the county’s annual mean wage) and excludes health care practitioners.  In comparison, Section 542.335 applies to all employees, including lower-wage workers and the above listed Florida health care practitioners.

2. Time and Geographic Restrictions

The CHOICE Act allows noncompetes and garden leave agreements of up to 4 years with no geographic limitations, provided that the terms of noncompetes meets garden leave requirements (e.g., payment, notice periods, etc.). Conversely, Section 542.335 requires noncompetes to reasonable in time, geography, and line of business to support one or more legitimate business interests of the employer.

3. Garden Leave 

The CHOICE Act’s garden leave provisions have no equivalent in Section 542.335. Employees not covered by the CHOICE Act (e.g., lower-wage workers, health care practitioners) cannot be placed on garden leave, meaning noncompetes with such employees must meet the legal requirements of Florida’s traditional noncompetes governed by Section 542.355.

4. Signature Requirements 

Garden leave agreements under the CHOICE Act require the signatures of both the employee and the employer, reflecting the formal, bilateral nature of the agreement. Conversely, Section 542.335 requires a noncompete only be signed by the employee.

5. Enforcement Standards 

The CHOICE Act imposes a higher burden on employees to challenge enforcement, requiring clear and convincing evidence to avoid preliminary injunctions. In comparison, Section 542.335 requires courts to assess the reasonableness of noncompete terms and their necessity to support an employer’s legitimate business interests, balancing employer and employee interests.

6. Damages and Attorney Fees 

Under the CHOICE Act, prevailing employers are entitled to “all available monetary damages for all available claims”, which may include lost profits, compensatory damages, and other financial losses from all prevailing claims.  This offers a broader recovery scope for employers as opposed to Section 542.335.

Both statutes allow the prevailing party (employer or employee) to recover reasonable attorney fees and costs, but the CHOICE Act’s damages provision provides employers with a more expansive remedy.

7. Health Care Practitioners 

Noncompetes under Section 542.335 applies to all employees, including Florida licensed health care practitioners, while the CHOICE Act excludes them from its application.

8. Default Framework 

Noncompete agreements that do not meet the CHOICE Act’s criteria default to the legal requirements of noncompetes governed by Section 542.335.

Recommendations for Employers

To determine whether to take advantage of the CHOICE Act’s provisions or default to Section 542.335 for noncompetes, consider the following three approaches:

1. Evaluate Employee Roles and Compensation

Assess whether the employees meet the CHOICE Act’s income threshold (over twice the county’s annual mean wage). For high-earning employees with access to valuable confidential information or access to customer relationships, consider leveraging the CHOICE Act’s broader protections, including the 4-year duration, lack of geographic limits, and expansive damages recovery.

Conversely, for lower-wage employees, those in roles with less competitive risk, or who are exempted health care practitioners, default to Section 542.335 and ensure noncompete terms are reasonable in time, geography, and line of business to support the company's legitimate business interests.

2. Assess Financial Feasibility

The CHOICE Act’s 4-year noncompete duration requires employers to ensure all conditions of garden leave requirements are met, including continued compensation to employees during the 4 year notice period. To determine financial feasibility, calculate the financial impact of paying high-earning employees for up to 4 years versus the potential recovery of monetary damages if a breach occurs. If the budget supports garden leave for key employees, using the CHOICE Act to maximize protection and potential damages arising from a breach makes sense.

For roles where extended payments are cost-prohibitive, opt for noncompetes governed by Section 542.335.

3. Consider Industry and Competitive Risks

In industries with highly competitive turnover or sensitive proprietary information, the CHOICE Act’s extended duration, lack of geographic limits, and broader damages recovery offer more robust safeguards, particularly for employees who could cause significant financial harm by joining competitors.  

In less competitive sectors or for employees with limited access to confidential information or customer relationships, default to Section 542.335.

Summing It Up

The CHOICE Act, effective July 1, 2025, provides employers with robust mechanisms to safeguard business interests. Noncompete agreements can extend to 4 years without any geographic restrictions for high-earning employees. In addition, prevailing employers may recover all available monetary damages for all related claims, which may include lost profits, compensatory damages, and other financial losses. This offers employers a broader remedy than Florida’s existing noncompete law in Section 542.335. However, securing the 4-year duration requires that all garden leave conditions are fully met, including continued compensation to employees during the notice period.

In contrast, Section 542.335 governs noncompete agreements for lower-wage employees, health care practitioners, or when garden leave costs are commercially impractical. Additionally, noncompete restrictions must be reasonable in time, geography, and line of business with damages limited to protecting legitimate business interests.

Both statutes permit the prevailing party, whether employer or employee, to recover reasonable attorney fees and costs, though the CHOICE Act’s expansive damages provision enhances employer recovery potential.

However, Florida licensed health care practitioners are exempt from the CHOICE Act, meaning their noncompetes remain subject to Section 542.335. Noncompetes for such professionals must have reasonable restrictions and support the company's legitimate business interests to be valid and strengthen the likelihood of enforceability.

In conclusion, employers should strategically choose between the CHOICE Act and Section 542.335 based on factors such as employee compensation, industry competitiveness, and financial feasibility for garden leave. For high-value roles, the CHOICE Act’s comprehensive protections and broader damages recovery may justify the investment. For lower-risk positions or cost-conscious scenarios, default to the legal requirements of Section 542.335 for noncompete agreements.

If you would like to explore how Venus Caruso can assist you with a noncompete or garden leave agreement, schedule a complimentary consultation using the contact form or by emailing venus@carusolawoffice.com.

This post provides general information only and should not be construed as legal advice or opinion for any individual matter or circumstance. Laws and regulations can change, and specific situations may require different approaches. Always consult a qualified attorney for tailored advice to your specific circumstances.