Florida Non-Compete Litigation After the CHOICE Act: The New Two-Track System

Florida was already one of the friendliest states in the country for enforcing non-compete agreements. In July 2025 it went further. The CHOICE Act created a second, more powerful enforcement track for higher-earning workers, sitting alongside the longstanding statute that still governs everyone else. The result is a two-track system, and knowing which track an agreement rides on now answers most of the practical questions in a Florida non-compete fight, for the employer deciding whether to enforce and for the employee deciding whether to take the new job. The act arrived against the national current: as other states and federal regulators moved to restrict non-competes, Florida moved to strengthen them, which makes choice of law and place of work newly consequential facts. 

What did the CHOICE Act change?

For agreements it covers, nearly everything about enforcement. Covered non-compete and garden leave agreements are now presumed enforceable. The permissible restraint runs up to four years, double the outer bound courts historically blessed. And when a covered employer seeks to enforce, the court is directed to enter a preliminary injunction stopping the employee from working for the competitor, unless the employee carries a demanding burden, proof by clear and convincing evidence that the new work will not involve unfair competition or that the employer failed to pay what it promised. The burden of proof, in other words, has flipped from the employer to the employee, and the injunction that used to be the employer's burden to earn is now closer to its default. Prevailing employers can also recover fees, and the act reaches individual contractors as well as employees, provided the earnings test is met. 

Who is a covered employee?

This is the gate, and it is measured in money. The new track applies to employees and individual contractors whose earnings exceed twice the annual mean wage of the relevant Florida county, a threshold that in South Florida lands roughly in the low six figures. The number moves with federal wage data county by county, so coverage is a calculation, not a guess. Licensed healthcare practitioners are excluded. The statute also imposes formation requirements the employer must respect for the agreement to qualify: the worker must be told in writing of the right to consult counsel, must receive the agreement at least seven days before it is due, and must acknowledge in writing that confidential information or customer relationships come with the job. An agreement that skips these steps does not ride the new track, whatever the paycheck says. Garden leave agreements get parallel treatment: the employer keeps paying salary during the sit-out period, and in exchange receives the same strengthened enforcement. 

What about everyone below the threshold?

The prior law never went away. Workers under the wage line, and agreements that fail the new act's requirements or predate it, remain governed by Florida's longstanding restrictive covenant statute. There the employer bears the traditional burdens: a written, signed agreement; a legitimate business interest such as trade secrets, confidential information, or substantial customer relationships; and restraints reasonably limited in time, geography, and line of business. Courts modify overbroad restraints rather than voiding them, restraints beyond two years face a presumption of unreasonableness, and the fight is the familiar one over whether the restriction protects a real interest or simply punishes departure. The rule of thumb for this track is unchanged: the employer should be prepared to prove the limits are reasonable in scope and geography, because that is exactly what the statute demands. Non-solicitation and confidentiality agreements, narrower restraints by design, likewise continue under the traditional analysis, and they remain the workhorse protections for the broad middle of the workforce. 

What does this mean for employers?

Leverage, if the paperwork earns it. For key personnel above the threshold, a compliant covered agreement is now among the strongest restrictive covenants available anywhere in the country, with a mandatory injunction behind it. The homework is procedural: audit which roles clear the wage threshold, rebuild the onboarding sequence around the seven-day review and written notices, and decide deliberately between traditional non-competes and garden leave, in which the employee is paid to sit out. Choice of law clauses deserve fresh attention too, since the act asserts itself for work performed primarily in Florida regardless of what the contract selects. And remember the limits: the act does not bless sloppy drafting, it does not cover the whole workforce, and below the line the reasonableness fight continues as before. 

What does this mean for employees?

The stakes of signing rose, and so did the value of the review window the statute now requires. A covered employee weighing an offer should treat the non-compete as a priced term of the deal, because a four-year restraint backed by a near-automatic injunction is a serious constraint on a career. Employees below the threshold retain the traditional arguments: no legitimate interest, overbreadth, the employer's own breach, and changed roles. And for anyone already restricted, the analysis begins with dates and dollars: agreements signed before July 2025 remain on the old track, and earnings determine coverage. One more employee-side reality: departing with files, customer data, or anything that looks like trade secrets converts a defensible non-compete fight into a much worse one, so leave clean regardless of what you think of the agreement. 

How do these fights actually unfold?

Fast. Non-compete litigation is front-loaded: the case is often effectively decided at the preliminary injunction stage, within weeks of the departure, on declarations and expedited evidence. Prevailing party fee provisions, standard in these agreements and reinforced by both statutes, raise the cost of miscalculating. The strongest outcomes on both sides tend to come from early, realistic assessment: what track, what interest, what actual competitive threat, and what negotiated boundary would let everyone get back to business. Because the statute is young, early decisions interpreting it will shape practice for years, and agreements drafted now should anticipate that the details, thresholds, notices, acknowledgments, will be tested.

Salomon Smith PLLC litigates non-compete and restrictive covenant disputes across South Florida, enforcing agreements for employers and defending employees against overreach. If a departure is turning into a dispute, call (305) 297-1018 for a free consultation, or learn more about our business litigation practice.

This article is for general informational purposes only and is not legal advice.