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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 Contracts Honoring 5
Opportunity, Investment, Confidentiality, and Economic 6
Growth (CHOICE) Act"; creating s. 542.41, F.S.; 7
providing a short title; creating s. 542.42, F.S.; 8
providing legislative findings; creating s. 542.43, 9
F.S.; defining terms; creating s. 542.44, F.S.; 10
providing applicability; providing that certain 11
covered garden leave agreements are not a restraint of 12
trade or an attempt to monopolize trade or commerce; 13
providing notice requirements for covered garden leave 14
agreements; providing that a covered employer may 15
waive any portion of such notice requirements by 16
providing a specified amount of advance written notice 17
to the covered employee; providing that covered garden 18
leave agreements do not affect other agreements; 19
requiring a court to enter a preliminary injunction to 20
stop covered employees, businesses, entities, or 21
individuals if a breach of a covered garden leave 22
agreement is alleged; authorizing the court to modify 23
such an injunction if a covered employee, business, 24
entity, or individual establishes certain information 25
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by clear and convincing evidence; requiring t hat 26
certain information be provided to the court under 27
seal; providing that a prevailing covered employer is 28
entitled to recover all available monetary damages for 29
all available claims; providing that a prevailing 30
party is entitled to reasonable attorney f ees and 31
costs; authorizing a covered employer to reduce the 32
salary or benefits of a covered employee if he or she 33
engages in gross misconduct; providing that such a 34
reduction is not a breach of the covered garden leave 35
agreement; creating s. 542.45, F.S.; providing 36
applicability; providing that certain covered 37
noncompete agreements are not a restraint of trade or 38
an attempt to monopolize trade or commerce; providing 39
notice requirements for covered noncompete agreements; 40
providing that covered noncompete agr eements do not 41
affect other agreements; requiring a court to enter a 42
preliminary injunction to stop covered employees, 43
businesses, entities, or individuals if a breach of a 44
covered noncompete agreement is alleged; authorizing 45
the court to modify such an in junction if a covered 46
employee, business, entity, or individual establishes 47
certain information by clear and convincing evidence; 48
requiring that certain information be provided to the 49
court under seal; providing that a prevailing covered 50
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employer is entitled to recover all available monetary 51
damages for all available claims; providing that a 52
prevailing party is entitled to reasonable attorney 53
fees and costs; authorizing a covered employer to 54
reduce the salary or benefits of a covered employee if 55
he or she engages in gross misconduct; providing that 56
such a reduction is not a breach of the covered 57
noncompete agreement; providing construction regarding 58
a restrictive covenant that does not meet the 59
definition of a covered garden leave agreement or a 60
covered noncompete agreement; providing an effective 61
date. 62
63
Be It Enacted by the Legislature of the State of Florida: 64
65
Section 1. Part I of chapter 542, Florida Statutes, 66
consisting of ss. 542.15 -542.36, Florida Statutes, is created 67
and entitled the "Florida Antitrust Act of 1980." 68
Section 2. Part II of chapter 542, Florida Statutes, 69
consisting of ss. 542.41 -542.45, Florida Statutes, is created 70
and entitled the "Florida Contracts Honoring Opportunity, 71
Investment, Confidentiality, and Economic Growth (CHOI CE) Act." 72
542.41 Short title. —This part may be cited as the "Florida 73
Contracts Honoring Opportunity, Investment, Confidentiality, and 74
Economic Growth (CHOICE) Act." 75
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542.42 Legislative findings. —The Legislature finds that a 76
proper and legitimate state i nterest is served by enforcing 77
strong legal protections in contracts between employers and 78
contracted personnel which encourage optimal levels of 79
information sharing and training and development. The 80
Legislature further finds that alternative means of prot ecting 81
confidential information and client relationships, such as 82
nondisclosure agreements, fixed -duration term contracts, and 83
nonsolicitation clauses in employment contracts, are inadequate 84
to protect against the significant global risks faced by 85
companies in this state. The Legislature further finds that 86
predictability in the enforcement of contracts described in this 87
part encourages investment in this state. Therefore, the 88
Legislature determines and declares that this part fulfills an 89
important state interest. 90
542.43 Definitions. —For the purposes of this part, the 91
term: 92
(1) "Annual mean wage of employees in Florida" or "annual 93
mean wage" means the most recent annual mean wage as calculated 94
by the United States Department of Labor Bureau of Labor 95
Statistics, or its successor calculation, for all occupations in 96
this state. 97
(2) "Benefit" means access to health insurance, life 98
insurance, or disability insurance that is the same as or 99
similar to the insurance that a covered employee had access to 100
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and at the same cost to that employee during the month before 101
the commencement of his or her notice period. 102
(3) "Covered employee" means an employee or individual 103
contractor who earns or is reasonably expected to earn a salary 104
greater than twice the annual mean wage, or who has access to 105
his or her employer's or client's confidential information or 106
customer relationships. The term does not include a person 107
classified as a medical professional as defined in s. 1006.0626. 108
(4) "Covered employer" means an entity or individual who 109
employs or engages a covered employee. 110
(5) "Covered garden leave agreement" means a written 111
agreement, or part of a written agreement, between a covered 112
employee and covered employer in which: 113
(a) The covered employee and covered employ er agree to up 114
to, but no more than, 4 years of advance, express notice before 115
terminating the employment or contractor relationship; 116
(b) The covered employee agrees not to resign before the 117
end of such notice period; and 118
(c) The covered employer agree s to retain the covered 119
employee for the duration of such notice period and to continue 120
paying the covered employee the same salary and providing the 121
same benefits that the covered employee received from the 122
covered employer in the last month before the co mmencement of 123
the notice period. The covered employer is not obligated to 124
provide discretionary incentive compensation or benefits or have 125
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the covered employee continue performing any work during the 126
notice period. 127
(6) "Covered noncompete agreement" means a written 128
agreement, or a portion of a written agreement, between a 129
covered employee and a covered employer in which, for a period 130
not to exceed 4 years and within the geographic area defined in 131
the agreement, the covered employee agrees not to assum e a role 132
with or for another business, entity, or individual: 133
(a) In which the covered employee would provide services 134
similar to the services provided to the covered employer during 135
the 3 years preceding the noncompete period; or 136
(b) In which it is re asonably likely the covered employee 137
would use the confidential information or customer relationships 138
of the covered employer. 139
(7) "Noncompete period" means the time from the covered 140
employee's termination of employment through the end of the 141
agreed-upon postemployment period of noncompetition as set forth 142
in the covered noncompete agreement. 143
(8) "Notice period" means the date from the covered 144
employee's or covered employer's written notice of intent to 145
terminate the covered employee's employment throug h the date of 146
termination as set forth in a covered garden leave agreement. 147
(9) "Primary place of work" means the location where the 148
covered employee spends more work time than any other single 149
workplace. 150
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(10) "Salary" means the base compensation, calc ulated on 151
an annualized basis, which a covered employer pays a covered 152
employee, including a base wage, a salary, a professional fee, 153
or other compensation for personal services, and the fair market 154
value of any benefit other than cash. Salary does not inc lude 155
health care benefits, severance pay, retirement benefits, 156
expense reimbursement, distribution of earnings and profits not 157
included as compensation for personal services, discretionary 158
incentives or awards, or anticipated but indeterminable 159
compensation, including tips, bonuses, or commissions. 160
542.44 Covered garden leave agreement. — 161
(1) APPLICABILITY.—This section applies to: 162
(a) A covered garden leave agreement with a covered 163
employee who maintains a primary place of work in this state, 164
regardless of any applicable choice of law provisions; or 165
(b) A covered employee who is subject to a covered garden 166
leave agreement with a covered employer with a significant nexus 167
to this state. 168
169
If any provision of this section is in conflict with any other 170
law, the provisions of this section shall govern. 171
(2) RESTRAINT OF TRADE. —A covered garden leave agreement 172
does not violate public policy as a restraint of trade, as 173
described in s. 542.18, or an attempt to monopolize trade or 174
commerce in this state, as de scribed in s. 542.19, and is fully 175
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enforceable according to its terms, provided that: 176
(a) A covered employee was advised, in writing, of the 177
right to seek counsel prior to execution of the covered garden 178
leave agreement and was provided notice as described in 179
subsection (3); 180
(b) A covered employee acknowledges, in writing, receipt 181
of confidential information or customer relationships ; and 182
(c) The covered garden leave agreement provides that: 183
1. After the first 90 days of t he notice period, the 184
covered employee does not have to provide services to the 185
covered employer; 186
2. The covered employee may engage in nonwork activities 187
at any time, including during normal business hours, during the 188
remainder of the notice period; and 189
3. The covered employee may, with the permission of the 190
covered employer, work for another employer while still employed 191
by the covered employer during the remainder of the notice 192
period. 193
4. The garden leave agreement notice period may be reduced 194
during the notice period if the covered employer provides at 195
least 30 days' advance notice in writing to the covered 196
employee. 197
(3) NOTICE.— 198
(a) A covered employer must provide a proposed covered 199
garden leave agreement to: 200
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1. A prospective covered employe e at least 7 days before 201
an offer of employment expires; or 202
2. A current covered employee at least 7 days before the 203
date that an offer to enter into a covered garden leave 204
agreement expires. 205
(b) A covered employer may, as provided for in the covered 206
garden leave agreement, shorten the term of the notice period at 207
any time during the notice period by providing at least 30 days' 208
advance notice in writing to the covered employee. 209
(4) OTHER AGREEMENTS. —This section does not affect or 210
limit the enforceabi lity of any other employment agreement or 211
any other agreement. 212
(5) BREACH OF A COVERED GARDEN LEAVE AGREEMENT; REMEDIES. — 213
(a) Upon application by a covered employer seeking 214
enforcement of a covered garden leave agreement , a court must 215
preliminarily enjoin a covered employee from providing services 216
to any business, entity, or individual other than the covered 217
employer during the notice period. The court may modify or 218
dissolve the injunction only if the covered employee establishes 219
by clear and convinc ing evidence that: 220
1. The covered employee will not perform, during the 221
notice period, any work similar to the services provided to the 222
covered employer during the 3 -year period preceding the 223
commencement of the notice period, or use confidential 224
information or customer relationships of the covered employer; 225
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or 226
2. The covered employer has failed to pay or provide the 227
salary and benefits provided for in the covered garden leave 228
agreement during the notice period and has had a reasonable 229
opportunity to cure the failure. 230
(b) Upon application by a covered employer seeking 231
enforcement of a covered garden leave agreement , a court must 232
preliminarily enjoin a business, an entity, or an individual 233
from engaging a covered employee during the covered employee's 234
notice period. The court may modify or dissolve the injunction 235
only if the business, entity, or individual establishes by clear 236
and convincing evidence, based on public or other 237
nonconfidential information, that: 238
1. The covered employee will not provide a ny services 239
similar to the services provided to the covered employer during 240
the 3-year period preceding the commencement of the notice 241
period, or use confidential information or customer 242
relationships of the covered employer; or 243
2. The business or indivi dual seeking to employ or engage 244
the covered employee is not engaged in, and is not planning or 245
preparing to engage in, any business activity similar to those 246
engaged in by the covered employer during the notice period. 247
248
Any information filed with the cour t which the covered employer 249
deems to be confidential must be filed under seal to protect 250
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confidentiality or avoid substantial injury. A court must 251
presume that an employee or individual contractor has access to 252
confidential information or customer relatio nships if the 253
employee or individual contractor acknowledges the access or 254
receipt of such access in writing. 255
(c) The injunctive relief provided under this section is 256
not an exclusive remedy, and a prevailing covered employer is 257
entitled to recover all a vailable monetary damages for all 258
available claims. 259
(d) In any action to enforce this section, the prevailing 260
party is entitled to reasonable attorney fees and costs. 261
(e) If the covered employee engages in gross misconduct 262
against the covered employer, the covered employer may reduce 263
the salary or benefits of the covered employee or take other 264
appropriate action during the notice period, which reduction or 265
other action may not be considered a breach of the covered 266
garden leave agreement. 267
542.45 Covered noncompete agreements. — 268
(1) APPLICABILITY.—This section applies to: 269
(a) A covered noncompete agreement with a covered employee 270
who maintains a primary place of work in this state, regardless 271
of any applicable choice of law provisions; or 272
(b) A covered employee who is subject to a covered 273
noncompete agreement with a covered employer with a significant 274
nexus to this state. 275
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276
In either case, if any provision of this section is in conflict 277
with any other law, the provisions of this section govern. 278
(2) RESTRAINT OF TRADE. —A covered noncompete agreement 279
does not violate public policy as a restraint of trade, as 280
described in s. 542.18, or an attempt to monopolize trade or 281
commerce in this state, as described in s. 542.19, and is fully 282
enforceable according to its terms, provided that: 283
(a) A covered employee was advised, in writing, of the 284
right to seek counsel prior to execution of the covered 285
noncompete agreement and was provided notice as described in 286
subsection (3); 287
(b) A covered employee acknowl edges, in writing, receipt 288
of confidential information or customer relationships; and 289
(c) A covered noncompete agreement provides that the 290
noncompete period is reduced day -for-day by any nonworking 291
portion of the notice period, pursuant to a covered gard en leave 292
agreement between the covered employee and the covered employer, 293
if applicable. 294
(3) NOTICE.—A covered employer must provide a proposed 295
covered noncompete agreement to: 296
(a) A prospective covered employee at least 7 days before 297
an offer of employment expires; or 298
(b) A current covered employee at least 7 days before the 299
date that an offer to enter into a covered noncompete agreement 300
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expires. 301
(4) OTHER AGREEMENTS. —This section does not affect or 302
limit the enforceability of any other employment agreement or 303
any other agreement. 304
(5) BREACH OF COVERED NONCOMPETE AGREEMENT; REMEDIES. — 305
(a) Upon application by a covered employer seeking 306
enforcement of a covered noncompete agreement , a court must 307
preliminarily enjoin a covered employee from providi ng services 308
to any business, entity, or individual other than the covered 309
employer during the noncompete period. The court may modify or 310
dissolve the injunction only if the covered employee establishes 311
by clear and convincing evidence that: 312
1. The covered employee will not perform, during the 313
noncompete period, any work similar to the services provided to 314
the covered employer during the 3 -year period preceding the 315
commencement of the noncompete period, or use confidential 316
information or customer rel ationships of the covered employer; 317
or 318
2. The covered employer has failed to pay or provide the 319
consideration provided for in the covered noncompete agreement 320
and has had a reasonable opportunity to cure the failure. 321
(b) Upon application by a covered e mployer seeking 322
enforcement of a covered noncompete agreement , a court must 323
preliminarily enjoin a business, an entity, or an individual 324
from engaging a covered employee during the covered employee's 325
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noncompete period. The court may modify or dissolve the 326
injunction only if the business, entity, or individual 327
establishes by clear and convincing evidence, based on public or 328
other nonconfidential information, that: 329
1. The covered employee will not provide any services 330
similar to the services provided to the covered employer during 331
the 3-year period preceding the commencement of the noncompete 332
period, or use confidential information or customer 333
relationships of the covered employer; or 334
2. The business or individual seeking to employ or engage 335
the covered employee is not engaged in, and is not planning or 336
preparing to engage in, any business activity in the geographic 337
area specified in the noncompete agreement during the noncompete 338
period if such business activity is similar to those engaged in 339
by the covered employer. 340
341
Any information filed with the court which the covered employer 342
deems to be confidential must be filed under seal to protect 343
confidentiality or avoid substantial injury. A court must 344
presume that an employee or individual contractor has access to 345
confidential information or customer relationships if the 346
employee or individual contractor acknowledges the access or 347
receipt of such access in writing. 348
(c) The injunctive relief provided in this section is not 349
an exclusive remedy, and a prevailing c overed employer is 350
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entitled to recover all available monetary damages for all 351
available claims. 352
(d) In any action to enforce this section, the prevailing 353
party is entitled to reasonable attorney fees and costs. 354
(e) If the covered employee engages in gr oss misconduct 355
against the covered employer, the covered employer may reduce 356
the salary or benefits of the covered employee or take other 357
appropriate action during the noncompete period, which reduction 358
or other action may not be considered a breach of the covered 359
noncompete agreement. 360
361
Any action regarding a restrictive covenant that does not meet 362
the definition of a covered garden leave agreement or a covered 363
noncompete agreement as provided in this part is governed by s. 364
542.335. 365
Section 3. This act shall take effect July 1, 2025. 366