Florida’s CHOICE Act changed the rules on restrictive covenants for a defined class of highly paid workers and the employers that hire them. The Act left existing Florida non-competes in place and added a separate framework with its own definitions, notice requirements, presumptions, and remedies.
That distinction matters for any employer drafting a Florida non-compete agreement. Calling an agreement a “CHOICE Act non-compete” does not bring it within the statute, even when both parties want the stronger enforcement tools. Coverage turns on compensation, work location, employer location, written acknowledgments, advance delivery, and the substance of the drafting.
Determine coverage before choosing the form. Compensation is measured against a county-based threshold. The employee must receive written notice of the right to counsel and time to review the agreement in advance. A covered non-compete may last up to four years. The statute’s strong injunction framework raises the cost of a drafting error.
The Act Is a Separate Statutory Lane
Part II of Chapter 542, Florida Statutes is the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act, known as the CHOICE Act. Sections 542.41 through 542.45 govern covered garden-leave agreements and covered non-compete agreements.
Courts continue to analyze traditional Florida restrictive covenants under Fla. Stat. § 542.335, which addresses legitimate business interests, reasonable necessity, duration presumptions, and related enforcement issues. That familiar framework still applies. The CHOICE Act offers a second path when an agreement satisfies the statute’s coverage rules and formalities.
An employer should choose between the two paths on purpose. A document that partly tracks each one can leave doubt about which standards govern and what supports the restraint, including whether the employee received the process the statute requires.
Coverage Begins With Compensation and Geography
The 2026 statute defines a “covered employee” as an employee or individual contractor who earns, or is reasonably expected to earn, a salary greater than twice the annual mean wage of the relevant Florida county. The relevant county is generally where the employer has its principal place of business. If that place of business is outside Florida, the county where the employee lives controls. The statute excludes health care practitioners as it defines them.
The statute defines “salary” with care. It includes annualized base compensation and the fair market value of certain noncash benefits. It excludes items such as health care benefits, severance, retirement benefits, expense reimbursement, distributions not treated as pay for personal services, discretionary incentives, and compensation that cannot be determined in advance, such as bonuses or commissions.
Total compensation on a recruiting slide may therefore differ from statutory salary. Employers should document the calculation, the county used, the source year for the annual mean wage data, and the components included. Wage data changes over time, so a form built around an old dollar figure can become outdated even though the statute has not changed.
Garden Leave and Non-Competes Work Differently
A covered garden-leave agreement can require up to four years of advance, express notice before the employment or contractor relationship ends. During the notice period, the employer continues salary and qualifying benefits based on the final month before the period begins, subject to the statute’s terms. After the first ninety days, the employee no longer has to provide services and may engage in nonwork activity. With the employer’s permission, the employee may also work elsewhere.
A covered non-compete agreement can restrict a covered employee for up to four years after the relationship ends, within the defined geographic area. The restriction applies to similar services, or to circumstances where the employee is reasonably likely to use confidential information or customer relationships.
The two tools place cost differently. Garden leave requires the employer to keep paying salary and benefits through the notice period, while a non-compete takes effect after termination. When both apply, the statute also addresses reducing the non-compete period by the nonworking portion of the garden-leave notice period.
The business decision should start with the interest being protected. The concern might be transition time, customer handoff, confidential information, competitive services, or a mix of these. The broadest available restraint is not automatically the most useful or the easiest to defend.
Process Is Part of Enforceability
For both types of covered agreement, the employer must advise the employee in writing of the right to consult counsel before signing. The employee must also acknowledge in writing that they have received, or will have access to, confidential information or customer relationships, as the applicable section requires.
The employer must deliver the proposed agreement at least seven days before an offer expires for a prospective employee, or at least seven days before the offer to sign the agreement expires for a current employee. That review period belongs in recruiting and retention workflows from the start, since adding it after signatures are scheduled is too late.
Version control matters. The agreement delivered for review should be the agreement signed, because material last-minute changes can undercut the record that the employee received the statutory review period. Employers should keep records of delivery, acknowledgment, the counsel notice, the compensation calculation, and the signed version.
Enforcement Is Designed to Move Quickly
The Act provides a strong preliminary injunction framework. For covered agreements, a court is directed to preliminarily enjoin specified conduct when the employer applies, subject to statutory grounds for modifying or dissolving the injunction and demanding standards of proof.
That structure changes the posture of a dispute. The early stage can decide whether the employee keeps working, including for a new business, and how confidential material is handled while the case proceeds. The statute also addresses sealed filing of confidential information the employer designates, along with attorney fees and costs for the prevailing party.
Strong remedies make precision more valuable. The employer should be able to identify the confidential information, customer relationships, prior services, geographic scope, and factual basis for enforcement. A standard acknowledgment form should match a real system for controlling information.
The Agreement Should Match the Operating Record
A restrictive covenant does not protect a business on its own, and the employer’s conduct should support the rights it asserts. Confidential information should be identified and kept behind access controls. Customer relationships should be documented. Exit procedures should address devices, credentials, downloads, files, and continuing obligations.
The agreement should also work alongside invention assignment, confidentiality, nonsolicitation, equity, severance, and dispute provisions. Conflicting governing-law, venue, notice, or integration clauses across documents can become the first issue in an enforcement fight.
In acquisitions and investments, due diligence should test whether key-person restrictions fall under the traditional statute, the CHOICE Act, sale-of-business principles, or another arrangement. A buyer should not assume enforceability just because the target company has signed forms.
Judicial Interpretation Is Still Developing
The CHOICE Act took effect in 2025, and courts are still interpreting it. Published appellate decisions may continue to address coverage, calculation, remedies, territorial reach, and interaction with other agreements. The statutory text is the starting point, and case law will add to it over time.
Employers should avoid copying an early market form and treating it as settled. Each use should confirm current law, current wage data, employee classification, geography, consideration, notice, and the employer’s actual protection systems.
Build the Agreement Around the Statute’s Requirements
The CHOICE Act can strengthen the position of qualifying employers, and its value depends on careful coverage analysis and process. Choosing the longest available term accomplishes little alone. An effective strategy identifies the protectable position, chooses the correct statutory path, gives the required review period, and keeps the record needed to support relief.
The agreement should be designed alongside access controls, compensation, transition planning, and enforcement protocol. Employers get the most protection when the written restriction and the daily practices behind it are built together and kept consistent, and a Florida business attorney can help align the two before the first agreement is signed.
Disclaimer: This industry insight is for general information only, is not legal advice, and does not create an attorney-client relationship.