Florida has a new law governing non-competition agreements, the CHOICE Act, Effective NOW in Florida as of July 1, 2025
As of July 1, 2025, the “CHOICE” Act – which stands for “the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth” Act – is officially the law of the Free State of Florida, making Florida the single most restrictive covenant-friendly state in the entire nation. We shared a detailed rundown of this proposed law back in May but given that as of July 1st the CHOICE Act is “live” and will likely impact nearly all of our readers, we decided it was worth another look.
First, well-informed business owners, human resource professionals, and dedicated policy wonks like yourselves might be shocked to hear just how often we hear otherwise successful, legally-savvy professionals – even attorneys working outside the labor & employment sphere – confidently declare that “everyone knows non-compete agreements aren’t enforceable.” It is hard to blame them in light of .gov headlines like “FTC Announces Rule Banning Non Competes” from just last year. On top of that, new attorneys or attorneys practicing in real estate or other practice areas will often assure potential clients that they can get them out of any contractual provision, no matter how ironclad. We also frequently hear things such as “my brother-in-law’s college roommate Brad says non-competes are illegal.”
To be fair to Brad-from-the-University-of-American-Samoa – who’s a nice guy, but don’t get him started on crypto – non-compete agreements are very close to illegal… in roughly a dozen states, depending on your tolerance for asterisks. California, for instance, generally won’t enforce non-competes at all, and Colorado actually made attempting to enforce a non-competition clause a criminal misdemeanor. Other states, like New York and Illinois, subject non-compete agreements to strict scrutiny, and often declare them unenforceable on grounds like “fairness” or “civil decency,” phrases at which judges in Texas and Florida will literally stifle a laugh. Seriously, try saying “spirit of the law” with a straight face in a Florida courtroom, and see how it goes (and don’t ask us how we know that).
But states like Texas, Florida, and Delaware will enforce non-compete agreements as a matter of course. In Florida, the meaningful criterium for enforcement are:
A “legitimate business interest,” meaning that there must be some reason to enforce the agreement, and
This means that you can’t prevent a former employee from taking a job in a different industry, or in a city in which you have no customers.
“Reasonable” temporal and geographical scopes.
In Florida, two-years and 5-miles are automatically enforced, to ensure that a former employee can’t open up shop next door to you. But, depending on the employee’s position and your particular industry, it’s not uncommon for entire counties to be deemed off-limits.
In other words, the bar for enforcing a non-compete agreement in the State of Florida was already pretty low. The CHOICE Act, for its part, is going to lower this bar even further, but only for employees meeting the Act’s criteria.
Succinctly, the CHOICE Act applies to employees:
Who earn, or are reasonably expected to earn, a salary greater than twice the annual mean wage of the Florida county
of the covered employer’s principal place of business; or
if the employer’s principal place of business is not in Florida, the county in Florida in which the employee resides.
Based on the Florida legislature’s findings, this salary threshold currently can range anywhere from $80,000/year to nearly $150,000/year. There are also some other boilerplate red-tape requirements – the employee must be advised in writing, yada yada yada; all of this will be taken care of by your friendly neighborhood labor & employment attorney (We do love Peter Parker and his moral compass!) – but did you catch the out-of-state enforcement element in that last sentence? The CHOICE Act actually reaches across state lines to include former residents of the Sunshine State. Not long ago we would have declared this unconstitutional per se, but it this new regime where the Eastern District of Texas has become a de facto junior Supreme Court – this “long-arm” jurisdiction is likely to receive a rubber-stamp from the 11thCircuit, meaning that employees who fall under CHOICE can no longer escape a non-compete clause by moving to a more employee-friendly state. Note that this also works the other direction: out-of-state employers with remote employees based on Florida can also invoke the CHOICE Act.
Suffice to say that the CHOICE Act is very broad, but what does is actually do? In a nutshell, the CHOICE Act shifts the vast majority of the burden surrounding proving that a non-compete violation has occurred from the employer to the employee.
Under CHOICE, if an employer shows that:
the employee and employer are covered under the CHOICE Act;
This is just a matter of math, e. proving that the employee earned a salary greater than twice the annual mean.
the non-compete agreement at issue satisfies the prerequisites of the CHOICE Act; and,
The prerequisites being the aforementioned math, and various boilerplate contractual language that will be taken care of for business owners by attorneys and HR professionals.
the employee likely violated the agreement and, thereby, also the CHOICE Act.
“Likely;” adjective – a word which here means “upon information and belief, I’m pretty sure that I heard…”
Where an employer meets these three criteria, the court must immediately issue an injunction forcing the employee to cease-and-desist the (potentially) violative behavior.
This is a lot of jargon to say that under CHOICE, the new enforcement standard is for courts to tell employees: “prove you didn’t violate the non-compete, or we will order you to quit your new job.” And if the employee won’t – or, realistically, can’t afford to – immediately resign their new employment? Mounting penalties, starting with fines, and ending with county jail.
Yikes. Listen, we’re staunch supporters of small business – we’re on your side here, really! – but a law that turns non-competition agreements from shields designed to protect your legitimate business interests into swords designed to inflict financial ruin on former employees, even across state lines, is not a “win” for small business. It’s just cruelty and will stifle employee mobility so that your business can obtain new talent for your business. And to shift the bulk of the burden of proof from the movant to the respondent? Dare we say “unprecedented”?
Think of it this way: imagine that tomorrow you receive a letter in the mail from Brad-from-the-University-of-American-Samoa, demanding that you either prove that you didn’t steal his client’s wallet a-month-and-a-half ago, or you will be ordered to fly to another state to give him $2,500, and also be forced quit your job until you can prove to the court that you don’t actually have his wallet. And if you don’t comply immediately, $2,500 becomes $5,000, which becomes $10,000, (which becomes… etc.), until eventually you go to jail for contempt of court. This may sound extreme, but we can’t help but slide down the proverbial slippery slope.
There is a silver lining here in that the minimum salary threshold requirement will ensure that rank-and-file retail employees are spared the CHOICE Act’s wrath. But for mid-level professionals just starting out in their careers? The CHOICE Act reason is enough to strongly consider beginning your career in another state – we hear Colorado is lovely this time of year – which is bad for businesses owners looking for qualified employees, and likely bad for the future of the State of Florida.