Florida's CHOICE Act Poised to Expand Noncompete Enforcement
On April 24, 2025, the Florida Legislature approved the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act, which now awaits the Governor's signature. In a striking departure from the national trend toward limiting restrictive covenants, the CHOICE Act positions the Sunshine State as the most noncompete-friendly jurisdiction in the country, enshrining legal protection for agreements lasting up to four years. While the Federal Trade Commission and many states are scaling back—or banning—noncompetes altogether, Florida is moving aggressively in the opposite direction, granting employers powerful new tools to restrict post-employment competition and potentially creating a "safe harbor" for businesses concerned about noncompete enforcement.
Who Qualifies?
The CHOICE Act applies only to individuals earning at least twice the annual average wage in the Florida county where their employer is based—or, in the case of out-of-state employers, where the individual resides. This threshold is intended to limit enforceable noncompete agreements to higher-earning professionals, such as executives, key personnel, and specialized contractors.
Importantly, employees of Florida-based companies may still fall within the scope of the Act even if they live outside of Florida, meaning the law could reach beyond state lines in its application.
Formal Requirements
To be enforceable under the CHOICE Act, noncompete agreements must meet several formal prerequisites:
- Be in writing.
- Provide employees at least seven days to review the terms before signing.
- Inform employees of their right to consult legal counsel.
- Include a signed acknowledgment that the employee has received confidential information or had access to customer relationships.
These formalities serve both as procedural safeguards for workers and as evidence supporting the employer's claim of a legitimate business interest.
Time and Geographic Scope
Under the Act, a noncompete agreement can restrict an employee's competitive activities for up to four years, provided the restricted period and geographic area are clearly defined in the contract. This represents a notably long duration by national standards, further distinguishing Florida from jurisdictions that have capped such restrictions at shorter terms or banned them entirely.
Enforcement Tools and Legal Recourse
The CHOICE Act enhances enforcement by creating a presumption of validity for qualifying agreements. Judges are required to issue preliminary injunctions in favor of employers who sue to enforce a noncompete, provided the agreement satisfies the statutory requirements. The burden then shifts to the employee to rebut the presumption, a significant change from traditional procedure that proponents argue provides needed certainty for businesses, while critics contend it could place undue hardship on employees trying to defend their livelihood.
The law also allows courts to enjoin third parties, such as new employers, from facilitating breaches of valid noncompete agreements, even if they were not parties to the original contract—a provision that may have far-reaching consequences for interstate hiring practices.
Potential Legal and Constitutional Challenges
While the CHOICE Act provides a strong enforcement mechanism for employers, it is likely to face legal scrutiny on several fronts. Critics may argue that:
- Extraterritorial Reach: The Act appears to apply even when the employee resides outside Florida, as long as their employer is Florida-based. This could raise conflicts-of-law questions and may be challenged under the Dormant Commerce Clause, which limits states from enacting laws with undue impact beyond their borders.
- Presumption of Validity and Injunctive Relief: By requiring courts to presume enforceability and issue preliminary injunctions in favor of employers, the Act effectively shifts the litigation burden onto employees. This may be contested as an erosion of due process rights, especially for individuals who cannot quickly mount a defense during fast-moving injunction proceedings.
- Intervention Against Third Parties: The ability to enjoin new employers who were not parties to the original noncompete agreement could raise due process concerns and spark tortious interference litigation.
As the law is implemented and tested in court, its durability under state and federal constitutional frameworks will likely become a pivotal issue.
Practical Takeaways for Employers and Employees
With the CHOICE Act poised to reshape Florida's employment landscape, stakeholders on both sides should take proactive steps. Below are targeted recommendations:
1. For Employers
- Review and Update Templates: Ensure that all noncompete agreements meet the formal requirements, such as the 7-day review period and written acknowledgment of confidential information access.
- Define Clear Boundaries: Explicitly state the duration and geographic scope to align with the Act's enforceability standards.
- Train HR and Legal Teams: Educate internal teams on the Act's provisions to ensure compliant onboarding practices.
2. For Employees and Contractors
- Don't Sign Without Legal Counsel: Take full advantage of the review period. Consult an attorney to understand the implications before agreeing to any restrictive covenants.
- Assess Future Mobility Risks: If you work for or are considering working with a Florida-based company, evaluate how a noncompete could limit your options post-employment.
- Negotiate Early: Higher earners may have leverage to seek narrower restrictions or alternative arrangements such as garden leave or compensation in exchange for signing.
By anticipating the legal and practical impacts of the CHOICE Act, both employers and professionals can better navigate this bold new regulatory framework.
Conclusion
The CHOICE Act is poised to redefine Florida's legal landscape for employment agreements, offering employers more robust protections at a time when noncompete clauses are being restricted or eliminated in many other states. For businesses wary of eroding noncompete rights elsewhere, Florida's new framework may serve as a safe haven.
At the same time, high-earning employees and independent contractors, particularly those working for Florida companies or residing in the state, should be aware of the expanded enforceability of restrictive covenants. As this law takes effect, both sides of the employment relationship should prepare now for a more aggressive and employer-friendly enforcement landscape.
Florida Makes A CHOICE To Toughen Noncompete Enforcement
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