Florida's New CHOICE Act Seeks to Enhance Enforcement of Non-Competes
In the recently enacted Contracts Honoring Opportunity, Investment, Confidentiality and Economic Growth Act (the "CHOICE Act"), Florida – which was already an employer-friendly state – inaugurated an even more pro-employer framework governing non-compete agreements for covered workers.
The CHOICE Act's provisions apply to companies based in Florida, regardless of where the worker resides, if the non-compete agreement complies with the other requirements and "is expressly governed by the laws" of Florida (see Florida Statutes (Fla.) Section 542.45(1)(b)). The new Act, which took effect in July 2025, also applies to workers with their principal place of work in Florida, even if they work for a non-Florida company and even if their non-compete specifies that it is governed by the laws of another state (Id at Section 542.45(1)(a)).
Under Florida's prior non-compete statute, which remains in effect for workers not covered by the CHOICE Act, an employer must prove that the contractual constraint is reasonably necessary to protect the employer's legitimate business interests, including demonstrating that it is reasonable in duration and geographic scope (Id at Section 542.335 (1)(c)). Restrictive covenants lasting more than two years are presumed unreasonable (Id at Section 542.335 (1)(d)1). The CHOICE Act eliminates the requirement to prove that the constraint furthers a legitimate business interest, eliminates the geographic restriction, and caps non-compete agreements at a duration of four years (Id at Section 542.43(6)).
Effectively flipping the typical burden of proof, the CHOICE Act requires courts to issue preliminary injunctions to enforce a covered agreement unless the employee demonstrates by clear and convincing evidence that the agreement is unenforceable or unnecessary to prevent unfair competition (Id at Section 542.45(5)(a)).
While the CHOICE Act is designed to greatly increase protection for employers, the Act does include certain protections for workers. The Act requires that the employee "was advised in writing of the right to seek counsel before execution of the covered non-compete agreement", and was given a week to review the proposed agreement and acknowledged in writing receipt of "confidential information or customer relationships" (Id at Section 542.45(2)(a)–(b) and 542.45(3)(a)).
The Act also exempts low-paid workers. It applies to "covered workers", defined as workers earning more than twice the mean wage in the Florida county where the employer has its principal place of business and, if the employer is out-of-state, twice the annual mean wage of the Florida county where the worker resides (Id at Section 542.43(3)). The new act is intended to encourage companies to invest in Florida (Id at Section 542.42 – "[t]he Legislature further finds that predictability in the enforcement of contracts described in this part encourages investment in this state").
The CHOICE Act also creates covered "garden leave" agreements. Under such agreements, employees remain on an employer's payroll for up to four years after giving notice of their resignation (Id at Section 542.43(5)). During the garden leave, employees often perform little to no work but are prevented from providing services to competitors, thereby allowing employers to protect their business interests by preventing an employee from competing.
As the CHOICE ACT is so new, courts have not yet had occasion to construe it. Given the sharp difference between Florida law and the law in more worker-friendly states, the Act will inevitably spawn a slew of conflicts about its enforcement. Certain likely conflicts are considered below.
Enforcing The CHOICE Act in Florida Against Workers in an Employer-Friendly State
A growing number of states – California, Minnesota, North Dakota and Oklahoma, as well as the District of Columbia – block non-competes completely unless tied to the sale of a business or in similar circumstances.
Given how pro-employer Florida non-compete law is, Florida companies are likely to draft non-compete agreements providing for venue in Florida and application of Florida law. Workers being sued in Florida under the CHOICE Act can challenge the venue or choice-of-law provisions, but doing so successfully will be difficult given the deference provided to such contractual provisions (especially venue clauses).
Where the forum selection clause is the fruit of an arm's length negotiation, the party challenging the clause bears an especially "heavy burden of proof" to avoid its bargain (see Bremen v Zapata Off-Shore Co, 407 US 1, 17 (1972)). Only "some compelling and countervailing reason" will excuse enforcement (Id at 12; see Carnival Cruise Lines, Inc v Shute, 499 US 585, 593–94 (1991)). A contractual choice-of-forum clause is enforceable unless "enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision". See Bremen, 407 US at 15; Atlantic Marine Construction Co, Inc v US District Court for Western District of Texas (2013) 571 US 49, 63 (2013) – "a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases".
A court sitting in Florida will look to Florida's public policy in deciding whether a forum selection provision violates public policy. See Mazzoni Farms, Inc v EI Dupont de Nemours & Co, 761 So 2d 306, 311–12 (Fla. 2000). As Florida policy favours enforcement of venue provisions and non-compete agreements, Florida courts will likely not override a forum selection clause unless that clause was obtained through fraud, or in some other exceptional circumstance. See Manrique v Fabbri, 493 So 2d 437, 440 (Fla. 1986); Holder v Burger King Corp, 576 So 2d 973, 974 (Fla. 2d DCA 1991).
Courts also give deference to contractual choice-of-law clauses. In federal court, choice-of-law issues in diversity actions – which are how most non-competes reach federal court – depend on the rules of the forum state. Under Florida law, contractual choice-of-law provisions are presumptively enforceable unless the law of the chosen forum contravenes strong public policy. See Interface Kanner, LLC v JPMorgan Chase Bank, NA, 704 F 3d 927, 932 (11th Cir 2013); Mazzoni Farms, Inc, 761 So 2d at 312 – "[a]lthough courts have adopted varied formulations, the underlying principle remains the same: the countervailing public policy must be sufficiently important that it outweighs the policy protecting freedom of contract".
In the absence of unusual facts, a Florida court is not likely to find that application of a Florida law to a non-compete agreement involving a company based in Florida violates the policy of Florida. See Fla. Section 671.105(1) (2025); see also Comment f to Section 187 of Restatement (Second) of Conflict of Laws (the law of the state selected in the contract has a substantial relationship to the parties or the contract where the selected state is the principal place of business for one of the parties).
An out-of-state worker who is a defendant in a breach of a non-compete action can also raise a personal jurisdiction challenge, but, if the worker voluntarily agreed to a provision establishing venue in Florida, that will likely dispose of any personal jurisdiction challenge. See Office Depot, Inc v Pelletier, 2016 WL 10932510, at *4 No 1 (SD Fla., 8 Sept 2016); Alexander Proudfoot Co World Headquarters LP v Thayer, ...
