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Pending expected approval from Gov. Ron DeSantis, Florida’s Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act (summary available here) is expected to go into effect on July 1, 2025. Once in place, the CHOICE Act will significantly strengthen the ability of employers to protect their workforce, confidential information, and other business interests.
Going against the strong current of recent state legislation and federal efforts to limit the enforceability of similar agreements, Florida’s CHOICE Act would further enhance Florida’s already favorable landscape for drafting and enforcing non-compete agreements. While the CHOICE Act is more employer-friendly than the general trend elsewhere, employers with operations or workers in Florida still must satisfy the CHOICE Act’s specific requirements to take advantage of its protections.
What does the CHOICE Act do?
The CHOICE Act allows covered non-compete and garden leave agreements in Florida to extend up to four years from separation of employment. Courts are required to issue preliminary injunctions to enforce covered agreements unless the employee or contractor demonstrates the agreement is unenforceable or unnecessary to prevent unfair competition. The CHOICE Act places a high burden on employees and prospective new employers who attempt to dissolve or modify an injunction enforcing a covered non-compete or garden leave agreement.
Importantly, the CHOICE Act does not modify Florida’s existing non-compete statute, so any non-compete agreements which do not meet the CHOICE Act’s requirements may still be enforceable if they contain reasonable restrictions and meet a legitimate business interest such as protecting trade secrets.
Who does the CHOICE Act apply to?
The CHOICE Act applies to:
The CHOICE Act does not apply to standalone confidentiality or non-solicitation agreements that do not contain non-competition restrictions.
Covered Non-Compete Agreements
Covered non-compete agreements under the CHOICE Act can restrict a covered employee from working for another employer up to four years after separation of employment in any geographic area if the individual is providing services for their new employer similar to the services they performed for the covered employer. Under the CHOICE Act, non-compete agreements do not require a reasonable geographic scope so long as any geographic scope is specified in the agreement.
To be enforceable under the CHOICE Act, the covered non-compete provision must:
Covered Garden Leave Agreements
The CHOICE Act authorizes garden leave agreements, which allows employers to require covered employees to provide advance notice (up to four years) before employment is terminated. During this garden leave period, employees remain on their employer’s payroll at their base salary (though discretionary bonuses aren’t required) and continue to receive benefits. Employers may still require the covered employee to continue working during the first 90 days of the garden leave period. After the initial 90-day garden leave period, covered employees may engage in non-work activities for the remainder of the notice period, including working for another employer with permission from the covered employer.
Similar to covered non-compete agreements, garden leave agreements require:
Employers may reduce the salary and benefits of employees who engage in undefined “gross misconduct” during the garden leave/notice period and such reduction will not be considered a breach by the employer. Relatedly, covered employers may reduce the notice period if they provide at least 30-days’ advance notice in writing to the covered employee.
Best Practices For Employers With Florida Operations Or Florida Employees
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