Florida’s CHOICE Act: A New Era for Non-Competes
Signed in the 2025 legislative session and effective
July 1 2025, Florida’s CHOICE Act (Creating Helpful Opportunities & Incentives for Competitive Employment) re-tools the state’s already employer-friendly non-compete statute. While the Federal Trade Commission is still trying to ban most non-competes nationwide, the CHOICE Act broadens what Florida employers can enforce—if the agreement is drafted correctly.
What's in the New Rule?
Key Enhancements Under the CHOICE Act
- Longer Terms: Ordinary-employee covenants presumptively reasonable up to 4 years (previous limit: 2).
- Garden Leave: Employers may keep a departing worker on paid “non-working notice” for up to 90 days; the clock counts toward the covenant’s term.
- Expanded “Legitimate Interests”: New product-line goodwill and AI/ML data sets now expressly protected.
- Mandatory Fee-Shifting: Courts must award attorneys’ fees to the prevailing party unless “manifestly unjust."
- Blue-Pencil Friendly: Judges continue to narrow overbroad clauses rather than void the entire agreement.
Interaction with Federal Law
The FTC’s 2024 rule would void most non-competes, but it is currently blocked in federal court and on hold while the agency “reconsiders” the regulation. Until a final decision lands, state law controls—meaning Florida employers may enforce CHOICE-compliant covenants. Wise companies should, however, maintain strong NDAs and customer-non-solicits as a fallback if the federal ban eventually survives.
Drafting & Enforcement Checklist
- Inventory all agreements—note employee pay level, term, territory, and protected interest.
- Update templates with garden-leave language and the new fee-shift clause.
- Tie scope to the role: Limit territory to the worker’s actual customer base; limit activities to what they performed.
- Provide consideration: Deliver the covenant before the start date or at a bona-fide promotion/raise.
- Exit protocol: Give departing employees a copy of the agreement and decide immediately whether to invoke garden leave.
Common Questions
Does CHOICE apply to everyone?
It primarily covers workers earning at least twice the average county wage; lower earners may fall outside the Act’s scope.
Can we still use non-solicitation clauses?
Yes, and you should—especially as a backup if the FTC ban is revived.
What about independent contractors?
The statute’s presumptive terms apply to contractors as well, provided a legitimate interest exists.
Is the fee-shifting automatic?
Yes, unless the court finds fee-shifting would be “manifestly unjust.”
Action Steps for 2025-26
- Q3 2025: Complete covenant inventory and revise templates.
- Q4 2025: Train HR and managers to issue the new agreements at hire or promotion.
- Q1 2026: Audit enforcement letters and exit interviews to ensure garden-leave decisions are documented.
- Ongoing: Monitor the FTC litigation; be ready to pivot to non-solicits and NDAs if a federal ban takes effect.
Need help preparing?
Book a free consultation with Eilers HR for support with compliance, training, or policy creation.
Get my posts directly to your inbox
Contact Us
Erin Eilers, M.S., PHR
Eilers HR Consulting
erin@eilershr.com | (561) 876-4750
