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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to employment agreements; creating 2
part I of ch. 542, F.S., entitled "The Florida 3
Antitrust Act of 1980"; creating part II of ch. 542, 4
F.S., entitled "The Florida Trade Secret Protection 5
Act"; creating s. 542.41, F.S.; providing a short 6
title; creating s. 542.42, F.S.; providing legislative 7
findings; creating s. 542.43, F.S.; defining terms; 8
creating s. 542.44, F.S.; providing applicability; 9
providing that certain covered garden leave agreements 10
are not a restraint of trade or an attempt to 11
monopolize trade or commerce; providing notice 12
requirements for covered garden leave agreements; 13
providing that a covered employer may waive any 14
portion of such notice requirements by providing a 15
specified amount of advance written notice to the 16
covered employee; providing that covered garden leave 17
agreements do not affect other agreements; requiring a 18
court to enter a preliminary injunction to stop 19
covered employees, businesses, entities, or 20
individuals if a breach of a covered garden leave 21
agreement is alleged; authorizing the court to modify 22
such an injunction if a covered employee, business, 23
entity, or individual establishes certain information 24
by clear and convincing evidence; requiring that 25
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certain information be provided to the court under 26
seal; providing that a prevailing covered employer is 27
entitled to recover all available monetary damages for 28
all available claims; providing that a prevailing 29
party is entitled to reasonable attorney fees and 30
costs; authorizing a covered employer to reduce the 31
salary or benefits of a covered employee if he or she 32
engages in gross misconduct; providing that such a 33
reduction is not a breach of the covered garden leave 34
agreement; creating s. 542.45, F.S.; providing 35
applicability; providing that certain covered 36
noncompete agreements are not a restraint of trade or 37
an attempt to monopolize trade or commerce; providing 38
notice requirements for covered noncompete agreements; 39
providing that covered noncompete agreements do not 40
affect other agreements; requiring a court to enter a 41
preliminary injunction to stop covered employees, 42
businesses, entities, or individuals if a breach of a 43
covered noncompete agreement is alleged; authorizing 44
the court to modify such an injunction if a covered 45
employee, business, entity, or individual es tablishes 46
certain information by clear and convincing evidence; 47
requiring that certain information be provided to the 48
court under seal; providing that a prevailing covered 49
employer is entitled to recover all available monetary 50
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damages for all available cla ims; providing that a 51
prevailing party is entitled to reasonable attorney 52
fees and costs; authorizing a covered employer to 53
reduce the salary or benefits of a covered employee if 54
he or she engages in gross misconduct; providing that 55
such a reduction is not a breach of the covered 56
noncompete agreement; providing construction regarding 57
a restrictive covenant that does not meet the 58
definition of a covered garden leave agreement or a 59
covered noncompete agreement; providing an effective 60
date. 61
62
Be It Enacted by the Legislature of the State of Florida: 63
64
Section 1. Part I of chapter 542, Florida Statutes, 65
consisting of ss. 542.15 -542.36, Florida Statutes, is created 66
and entitled "The Florida Antitrust Act of 1980." 67
Section 2. Part II of chapter 542, Fl orida Statutes, 68
consisting of ss. 542.41 -542.45, Florida Statutes, is created 69
and entitled "The Florida Trade Secret Protection Act." 70
542.41 Short title. —This part may be cited as "The Florida 71
Trade Secret Protection Act." 72
542.42 Legislative findings. —The Legislature finds that a 73
proper and legitimate state interest is served by enforcing 74
strong legal protections in contracts between employers and 75
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contracted personnel which encourage optimal levels of 76
information sharing and training and development. Th e 77
Legislature further finds that alternative means of protecting 78
confidential information and client relationships, such as 79
nondisclosure agreements, fixed -duration term contracts, and 80
nonsolicitation clauses in employment contracts, are inadequate 81
to protect against the significant global risks faced by 82
companies in this state. The Legislature further finds that 83
predictability in the enforcement of contracts described in this 84
part encourages investment in this state. Therefore, the 85
Legislature determines a nd declares that this part fulfills an 86
important state interest. 87
542.43 Definitions. —For the purposes of this part, the 88
term: 89
(1) "Annual mean wage of employees in Florida" or "annual 90
mean wage" means the most recent annual mean wage as calculated 91
by the United States Department of Labor Bureau of Labor 92
Statistics, or its successor calculation, for all occupations in 93
this state. 94
(2) "Benefit" means access to health insurance, life 95
insurance, or disability insurance that is the same as or 96
similar to the insurance that a covered employee had access to 97
and at the same cost to that employee during the month before 98
the commencement of his or her notice period. 99
(3) "Covered employee" means an employee or individual 100
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contractor who earns or is reasonably exp ected to earn a salary 101
greater than twice the annual mean wage, or who has access to 102
his or her employer's or client's confidential information or 103
customer relationships. A court must presume that an employee or 104
individual contractor has access to confiden tial information or 105
customer relationships if the employee or individual contractor 106
acknowledges the access or receipt of such access in writing. 107
The term does not include a person classified as a medical 108
professional as defined in s. 1006.0626. 109
(4) "Covered employer" means an entity or individual who 110
employs or engages a covered employee. 111
(5) "Covered garden leave agreement" means a written 112
agreement, or part of a written agreement, between a covered 113
employee and covered employer in which: 114
(a) The covered employee and covered employer agree to up 115
to, but no more than, 4 years of advance, express notice before 116
terminating the employment or contractor relationship; 117
(b) The covered employee agrees not to resign before the 118
end of such notice period; and 119
(c) The covered employer agrees to retain the covered 120
employee for the duration of such notice period and to continue 121
paying the covered employee the same salary and providing the 122
same benefits that the covered employee received from the 123
covered employer in the last month before the commencement of 124
the notice period. The covered employer is not obligated to 125
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provide discretionary incentive compensation or benefits or have 126
the covered employee continue performing any work during the 127
notice period. 128
(6) "Covered noncompete agreement" means a written 129
agreement, or a portion of a written agreement, between a 130
covered employee and a covered employer in which, for a period 131
not to exceed 4 years and within a specified geographic area, 132
which may be global in scope, the covered employee agrees not to 133
assume a role with or for another business, entity, or 134
individual: 135
(a) In which the covered employee would provide services 136
similar to the services provided to the covered employer during 137
the 3 years preceding the nonco mpete period; or 138
(b) In which it is reasonably likely the covered employee 139
would use the confidential information or customer relationships 140
of the covered employer. 141
(7) "Noncompete period" means the time from the covered 142
employee's termination of emplo yment through the end of the 143
agreed-upon postemployment period of noncompetition as set forth 144
in the covered noncompete agreement. 145
(8) "Notice period" means the date from the covered 146
employee's or covered employer's written notice of intent to 147
terminate the covered employee's employment through the date of 148
termination as set forth in a covered garden leave agreement. 149
(9) "Primary place of work" means the location where the 150
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covered employee spends more work time than any other single 151
workplace. 152
(10) "Salary" means the base compensation, calculated on 153
an annualized basis, which a covered employer pays a covered 154
employee, including a base wage, a salary, a professional fee, 155
or other compensation for personal services, and the fair market 156
value of any benefit other than cash. Salary does not include 157
health care benefits, severance pay, retirement benefits, 158
expense reimbursement, distribution of earnings and profits not 159
included as compensation for personal services, discretionary 160
incentives or awards, or an ticipated but indeterminable 161
compensation, including tips, bonuses, or commissions. 162
542.44 Covered garden leave agreement. — 163
(1) APPLICABILITY.—This section applies to: 164
(a) A covered garden leave agreement with a covered 165
employee who maintains a prima ry place of work in this state, 166
regardless of any applicable choice of law provisions; or 167
(b) A covered employee who is subject to a covered garden 168
leave agreement with a covered employer with a significant nexus 169
to this state. 170
171
If any provision of this section is in conflict with any other 172
law, the provisions of this section shall govern. 173
(2) RESTRAINT OF TRADE. —A covered garden leave agreement 174
does not violate public policy as a restraint of trade, as 175
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described in s. 542.18, or an attempt to monopoliz e trade or 176
commerce in this state, as described in s. 542.19, and is fully 177
enforceable according to its terms, provided that: 178
(a) A covered employee is provided proper notice of the 179
covered garden leave agreement before its execution, as 180
described in subsection (3); and 181
(b) The covered garden leave agreement provides that: 182
1. After the first 90 days of the notice period, the 183
covered employee does not have to provide services to the 184
covered employer; 185
2. The covered employee may engage in nonwork acti vities 186
at any time, including during normal business hours, during the 187
remainder of the notice period; and 188
3. The covered employee may, with the permission of the 189
covered employer, work for another employer while still employed 190
by the covered employer du ring the remainder of the notice 191
period. 192
(3) NOTICE; WAIVER OF NOTICE. —Proper notice of a covered 193
garden leave agreement requires: 194
(a) For a prospective covered employee, at least 7 days 195
before a prospective covered employee's offer of employment 196
expires. 197
(b) For a current covered employee, at least 7 days before 198
an offer to enter into a covered garden leave agreement expires. 199
200
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In either case, a prospective or current covered employee must 201
acknowledge in writing that he or she was expressly advised of 202
the right to seek legal counsel before the execution of the 203
covered garden leave agreement. 204
(c) The covered employer may, without breach of the 205
covered garden leave agreement, waive any portion of this 206
subsection by providing at least 30 days' advance n otice in 207
writing to the covered employee. 208
(4) OTHER AGREEMENTS. —This section does not affect or 209
limit the enforceability of any other employment agreement or 210
any other agreement. 211
(5) BREACH OF A COVERED GARDEN LEAVE AGREEMENT; REMEDIES. — 212
(a) Upon application by a covered employer, a court must 213
preliminarily enjoin a covered employee from providing services 214
to any business, entity, or individual other than the covered 215
employer during the notice period. The court may modify or 216
dissolve the injunction only if the covered employee establishes 217
by clear and convincing evidence that: 218
1. The covered employee will not perform, during the 219
notice period, any work similar to the services provided to the 220
covered employer during the 3 -year period preceding the 221
commencement of the notice period, or use confidential 222
information or customer relationships of the covered employer; 223
or 224
2. The covered employer has failed to pay or provide the 225
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salary and benefits provided for in the covered garden leave 226
agreement during the notice period and has had a reasonable 227
opportunity to cure the failure. 228
(b) Upon application by a covered employer, a court must 229
preliminarily enjoin a business, an entity, or an individual 230
from engaging a covered employee during the covered employ ee's 231
notice period. The court may modify or dissolve the injunction 232
only if the business, entity, or individual establishes by clear 233
and convincing evidence, based on public or other 234
nonconfidential information, that: 235
1. The covered employee will not pro vide any services 236
similar to the services provided to the covered employer during 237
the 3-year period preceding the commencement of the notice 238
period, or use confidential information or customer 239
relationships of the covered employer; or 240
2. The business or individual seeking to employ or engage 241
the covered employee is not engaged in, and is not planning or 242
preparing to engage in, any business activity similar to those 243
engaged in by the covered employer during the notice period. 244
245
Any information filed with th e court which the covered employer 246
deems to be confidential must be filed under seal to protect 247
trade secrets or avoid substantial injury. 248
(c) The injunctive relief provided under this section is 249
not an exclusive remedy, and a prevailing covered employer is 250
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
entitled to recover all available monetary damages for all 251
available claims. 252
(d) In any action to enforce this section, the prevailing 253
party is entitled to reasonable attorney fees and costs. 254
(e) If the covered employee engages in gross misconduct 255
against the covered employer, the covered employer may reduce 256
the salary or benefits of the covered employee or take other 257
appropriate action during the notice period, which reduction or 258
other action may not be considered a breach of the covered 259
garden leave agreement. 260
542.45 Covered noncompete agreements. — 261
(1) APPLICABILITY.—This section applies to: 262
(a) A covered noncompete agreement with a covered employee 263
who maintains a primary place of work in this state, regardless 264
of any applicable choice of la w provisions; or 265
(b) A covered employee who is subject to a covered 266
noncompete agreement with a covered employer with a significant 267
nexus to this state. 268
269
In either case, if any provision of this section is in conflict 270
with any other law, the provisions o f this section govern. 271
(2) RESTRAINT OF TRADE. —A covered noncompete agreement 272
does not violate public policy as a restraint of trade, as 273
described in s. 542.18, or an attempt to monopolize trade or 274
commerce in this state, as described in s. 542.19, and i s fully 275
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
enforceable according to its terms, provided that: 276
(a) A covered employee is provided proper notice of the 277
covered noncompete agreement before its execution, as described 278
in subsection (3); and 279
(b) A covered noncompete agreement provides that t he 280
noncompete period is reduced day -for-day by any nonworking 281
portion of the notice period, pursuant to a covered garden leave 282
agreement between the covered employee and the covered employer, 283
if applicable. 284
(3) NOTICE; WAIVER OF NOTICE. —Proper notice of a covered 285
noncompete agreement requires: 286
(a) For a prospective covered employee, at least 7 days 287
before a prospective covered employee's offer of employment 288
expires. 289
(b) For a current covered employee, at least 7 days before 290
an offer to enter into a co vered noncompete agreement expires. 291
292
In either case, a prospective or current covered employee must 293
acknowledge in writing that he or she was expressly advised of 294
the right to seek legal counsel before the execution of the 295
covered noncompete agreement. 296
(4) OTHER AGREEMENTS. —This section does not affect or 297
limit the enforceability of any other employment agreement or 298
any other agreement. 299
(5) BREACH OF COVERED NONCOMPETE AGREEMENT; REMEDIES. — 300
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(a) Upon application by a covered employer, a court must 301
preliminarily enjoin a covered employee from providing services 302
to any business, entity, or individual other than the covered 303
employer during the noncompete period. The court may modify or 304
dissolve the injunction only if the covered employee establishes 305
by clear and convincing evidence that: 306
1. The covered employee will not perform, during the 307
noncompete period, any work similar to the services provided to 308
the covered employer during the 3 -year period preceding the 309
commencement of the noncompete period, or us e confidential 310
information or customer relationships of the covered employer; 311
or 312
2. The covered employer has failed to pay or provide the 313
salary and benefits provided for in the covered noncompete 314
agreement during the noncompete period and has had a reas onable 315
opportunity to cure the failure. 316
(b) Upon application by a covered employer, a court must 317
preliminarily enjoin a business, an entity, or an individual 318
from engaging a covered employee during the covered employee's 319
noncompete period. The court may modify or dissolve the 320
injunction only if the business, entity, or individual 321
establishes by clear and convincing evidence, based on public or 322
other nonconfidential information, that: 323
1. The covered employee will not provide any services 324
similar to the services provided to the covered employer during 325
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the 3-year period preceding the commencement of the noncompete 326
period, or use confidential information or customer 327
relationships of the covered employer; or 328
2. The business or individual seeking to employ o r engage 329
the covered employee is not engaged in, and is not planning or 330
preparing to engage in, any business activity similar to those 331
engaged in by the covered employer during the noncompete period. 332
333
Any information filed with the court which the covered employer 334
deems to be confidential must be filed under seal to protect 335
trade secrets or avoid substantial injury. 336
(c) The injunctive relief provided in this section is not 337
an exclusive remedy, and a prevailing covered employer is 338
entitled to recover all a vailable monetary damages for all 339
available claims. 340
(d) In any action to enforce this section, the prevailing 341
party is entitled to reasonable attorney fees and costs. 342
(e) If the covered employee engages in gross misconduct 343
against the covered employer, the covered employer may reduce 344
the salary or benefits of the covered employee or take other 345
appropriate action during the noncompete period, which reduction 346
or other action may not be considered a breach of the covered 347
noncompete agreement. 348
349
Any action regarding a restrictive covenant that does not meet 350
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
the definition set forth in this section of a covered garden 351
leave agreement or a covered noncompete agreement is governed by 352
s. 542.335. 353
Section 3. This act shall take effect July 1, 2025. 354