On April 24, 2025, the Florida legislature passed the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth, or CHOICE, Act. The CHOICE Act took effect on July 3.
The CHOICE Act increases an employer’s ability to protect its confidential information from employees through non-compete agreements. To be covered by the CHOICE Act, a non-compete agreement must (a) be in writing; (b) specify a geographic area where it applies; (c) limit an employer’s protections to four years or less; and (4) either prevent a “covered employee” from accepting a role in which the “covered employee” would perform services similar to those provided to the employer within the three years preceding the non-compete period or prevent a “covered employee” from accepting a role in which the “covered employee” is reasonably likely to use the employer’s confidential information or customer relationships.
Additionally, the written agreement must (a) advise a “covered employee” to seek counsel before signing the agreement; (b) expressly acknowledge that the “covered employee” will receive confidential information or customer relationships; and (c) provide that the non-compete period will be reduced by the number of days an employee does not work during a notice period. An employer must also provide a “covered employee” with at least seven days to consider a non-compete agreement before signing it.
Covered Employees
To be covered by the CHOICE Act, a “covered employee” must earn or reasonably be expected to earn a salary greater than twice the annual mean wage in the county of the employer’s principal place of business or in the county where the employee resides for out-of-state employers. Based on 2024 data, that range is approximately $88,000 per year to $165,000, depending on the county. Importantly, “salary” does not include healthcare benefits, severance pay, retirement benefits, expense reimbursement, discretionary incentives, awards, tips, indeterminable bonuses, or commissions.
The CHOICE Act’s protections do not apply to lower wage, non-covered employees, although Florida law may otherwise allow employers to enforce non-compete, non-solicitation, and/or confidentiality agreements against employees not covered by the CHOICE Act. The CHOICE Act also does not apply to licensed healthcare professionals.
Enforcement
The CHOICE Act offers employers strong enforcement mechanisms. For example, the CHOICE Act requires courts to grant employers a preliminary injunction preventing “covered employees” from providing services to any business, entity, or individual during the non-compete period. The injunction can only be modified or eliminated if the “covered employee” proves, by clear and convincing evidence, that (a) the covered employee will not perform any work similar to the services provided to the covered employer during the three-year period preceding the non-compete period or use confidential information or customer relationships of the employer; (b) the employer failed to pay the consideration required by the non-compete agreement after a reasonable opportunity to cure the failure; or (c) the “covered employee’s” new employer (or other engagement) does not perform work similar to the enforcing employer’s work in the geographic area specified by the non-compete agreement.
The CHOICE Act also allows an employer to obtain an injunction against a business, entity, or individual that seeks to engage or employ a “covered employee,” unless the business, entity, or individual can establish one of two exceptions by clear and convincing evidence.
In addition to injunctive relief, the CHOICE Act allows an employer to collect monetary damages. The prevailing party in any litigation under the CHOICE Act is also entitled to collect its reasonable attorneys’ fees.
The CHOICE Act applies to all employees whose primary place of work is in Florida, regardless of contrary choice-of-law provisions. It also applies to all employees of employers whose principal place of business is Florida and whose agreement contains a Florida choice-of-law provision.
The CHOICE Act is only one of many protections that may be available to employers whose former employees accept new positions that could place an employer’s confidential information and customer relationships at risk. It does not limit or eliminate any of the other protections available under Florida law.
Employer Next Steps
Hahn Loeser’s Labor and Employment Team is well-equipped to assist employers in (a) reviewing current non-compete agreements for enforceability under the CHOICE Act; (b) navigating unfair competition issues created by former employees and (c) in defending allegations of unfair competition.
