Takeaways
- Florida's CHOICE Act diverges sharply from national trends, expanding rather than restricting employers' power to safeguard their business interests.
- The new law makes preliminary injunctions a default remedy, burdening employees to prove why an injunction should be dissolved.
- Questions remain as to whether federal courts will apply the Act.
Relevant links
- House Bill 1219
- Florida's CHOICE Act Offers Employers Unprecedented Tools for Non-Compete + Garden Leave Agreements
- Wyoming's New Non-Compete Law Starts in July: Employers Need to Look at Their Agreements Now
- Tom Leek's employment agreements bill advances
Article
Florida's new CHOICE Act, short for "Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act," makes sweeping changes to the state restrictive covenants law and strengthens employers' ability to enforce such agreements.
The law did not have the direct endorsement of Florida's pro-business governor. Departing from his usual approach, Governor Ron DeSantis took no action on the bill, allowing it to become law by default on July 3, 2025. Adding to the procedural complexity is the Act's stated July 1 effective date, which precedes its actual enactment. This legal wrinkle may raise questions for employers and courts.
Law Without a Signature - What Does It Mean?
The governor's inaction contrasts with his typically assertive legislative style and may signal discomfort with the bill's optics. Although the bill passed with strong support from business interests, it faced vocal opposition from labor advocates and legal scholars. The governor may have been trying to avoid alienating either side.
The governor may also be signaling a cautious stance toward future restrictive covenant legislation. The Act addresses non-compete and garden leave agreements, but it does not apply to other restrictive covenants such as non-solicitation provisions. As a result, a covered agreement could impose a four-year restriction on competition, while only prohibiting customer solicitation for a significantly shorter period - creating potential enforcement inconsistency. The Florida Legislature may seek to resolve this inconsistency by extending the permissible duration of other restrictive covenants. However, the governor's passive approach to the CHOICE Act could indicate potential resistance to further legislative expansion in this area.
Whose CHOICE Is It, Really?
Covered employees are those earning more than twice the mean wage in their county. They may be subject to non-compete and garden leave agreements lasting up to four years under the Act. These agreements are presumed enforceable and not contrary to public policy.
While the national trend is toward restricting or banning non-compete agreements - and while the Federal Trade Commission recently made a high-profile (ultimately unsuccessful) attempt to ban non-compete enforcement nationwide - Florida is doubling down as a national outlier.
The acronym "CHOICE" appears to emphasize Florida's pro-business policies, rather than a reflection of employee empowerment. It seems likely aimed at attracting out-of-state employers to "choose" to relocate to the Sunshine State. The law's employer-friendly provisions position Florida as the jurisdiction with the most aggressive restrictive covenant protections in the country. State Senator Tom Leek, the bill's sponsor, stated: "Florida is poised to become one of the finance capitals of the world, ... you have to provide those businesses those protections on the investments they're making."
Will the Act Hold Up in Federal Court?
Federal courts in Florida remain divided on whether to apply the presumption of irreparable harm outlined in Florida's general restrictive covenant statute, section 542.335(1)(j). Several courts have declined to apply these presumptions, finding them inconsistent with federal equitable principles on injunctive relief. This disagreement raises important questions about the CHOICE Act's enforceability in federal forums.
The CHOICE Act effectively makes injunctions a default remedy and places the burden on employees to prove - by clear and convincing evidence - why an injunction should be dissolved. This enhanced enforcement mechanism may face scrutiny in federal court, where equitable relief is traditionally governed by federal, not state, standards.
As a result, employers seeking to take full advantage of the CHOICE Act's procedural mechanisms may prefer to file enforcement lawsuits in Florida state courts, where the Act's automatic injunction provisions are more likely to be upheld. Conversely, defendants may attempt to remove such cases to federal court, where the enforceability of the Act's provisions may face greater scrutiny. In any event, employers will need to carefully evaluate jurisdictional considerations - including diversity and federal question grounds - when initiating litigation to enforce the Act's protections.
Next Steps for Employers
- Review existing agreements to determine whether they are covered under the CHOICE Act.
- Revise non-compete agreements to ensure compliance with the Act's requirements.
- Monitor litigation for early interpretations of the Act's enforcement mechanisms.
Originally published by Public.
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