The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/CS/SB 922
INTRODUCER: Rules Committee; Judiciary Committee; Commerce and Tourism Committee and
Senator Leek
SUBJECT: Employment Agreements
DATE: April 17, 2025
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. Bond Cibula JU Fav/CS
3. McMillan Yeatman RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 922 creates the “Florida Contracts Honoring Opportunity, Investment,
Confidentiality, and Economic Growth (CHOICE) Act,” which establishes the framework for the
use of covered garden leave agreements and covered noncompete agreements between a covered
employer and a covered employee. A covered garden leave agreement or a covered noncompete
agreement does not violate state antitrust laws. An employee must be given 7 days to review a
covered agreement before signing. The bill limits covered agreements to 4 years and provides for
the enforcement of covered agreements.
A covered employee is an employee or an individual contractor who earns or is reasonably
expected to earn a salary greater than twice the annual mean wage of the county in Florida which
the employer has its principal place of business, or the county in Florida in which the employee
resides. A covered garden leave agreement is an agreement to keep paying an existing covered
employee even though the employee is not required to appear at work or produce any output.
The employee agrees not to take any other employment during that period without the
permission of the employer. A covered noncompete agreement is an agreement usually signed at
the beginning of employment whereby the covered employee agrees not to work for a competitor
for a set length of time after termination of employment.
The bill takes effect July 1, 2025.
REVISED: BILL: CS/CS/CS/SB 922 Page 2
II. Present Situation:
Federal Antitrust Laws
In 1890, Congress passed the first antitrust law, the Sherman Act, as a comprehensive charter of
economic liberty aimed at preserving free and unfettered competition as the rule of trade.
Congress subsequently passed two additional antitrust laws in 1914: the Federal Trade
Commission Act, which created the Federal Trade Commission (FTC), and the Clayton Act.
Currently, these are the three core federal antitrust laws.
1
The Sherman Act
The Sherman Act outlaws every contract, combination, or conspiracy in restraint of trade, and
any monopolization, attempted monopolization, or conspiracy or combination to monopolize.
The Sherman Act does not prohibit every restraint of trade – only those that are unreasonable.
For example, an agreement between two individuals to form a partnership may restrain trade, but
may not do so unreasonably, and thus may be lawful under the antitrust laws. In contrast, certain
acts are considered “per se” violations of the Sherman Act because they are harmful to
competition. These include plain arrangements among competing individuals or businesses to fix
prices, divide markets, or rig bids.
2
The penalties for violating the Sherman Act can be severe. Although most enforcement actions
are civil, the Sherman Act is also a criminal law, and individuals and businesses that violate it
may be prosecuted by the U.S. Department of Justice. Criminal prosecutions are typically limited
to intentional and clear violations. The Sherman Act imposes criminal penalties of up to $10
million for a corporation and $350,000 for an individual, along with up to 3 years in prison.
3
Under some circumstances, the maximum fines can be higher.
4
The Federal Trade Commission Act
The Federal Trade Commission Act prohibits unfair methods of competition and unfair or
deceptive acts or practices.
5
The U.S. Supreme Court has ruled that all violations of the Sherman
Act also violate the FTC Act. Therefore, the FTC can bring cases under the FTC Act against the
same kinds of activities that violate the Sherman Act. The FTC Act also reaches other practices
that harm competition but may not fit neatly into categories of conduct formally prohibited by
the Sherman Act. Only the FTC may bring cases under the FTC Act.
6
1
See The Antitrust Laws, Federal Trade Commission, available at https://www.ftc.gov/tips-advice/competition-
guidance/guide-antitrust-laws/antitrust-laws (last visited April 17, 2025).
2
Id.
3
Antitrust Enforcement and the Consumer, U.S. Department of Justice, available at
https://www.govinfo.gov/content/pkg/GOVPUB-J-PURL-LPS16084/pdf/GOVPUB-J-PURL-LPS16084.pdf (last visited
April 17, 2025). See also 15 U.S.C.A. § 2
4
Id.
5
15 U.S.C. §§ 41-58.
6
The Antitrust Laws, Federal Trade Commission, available at https://www.ftc.gov/tips-advice/competition-guidance/guide-
antitrust-laws/antitrust-laws (last visited April 17, 2025). BILL: CS/CS/CS/SB 922 Page 3
The Clayton Act
The Clayton Act addresses specific practices that the Sherman Act does not clearly prohibit, such
as mergers and interlocking directorates.
7
It also bans mergers and acquisitions where the effect
may substantially lessen competition or create a monopoly. As amended by the Robinson-
Patman Act of 1936, the Clayton Act also prohibits certain discriminatory prices, services, and
allowances in dealings between merchants. The Clayton Act was amended again in 1976 by the
Hart-Scott-Rodino Antitrust Improvements Act to require companies planning large mergers or
acquisitions to notify the government of their plans in advance. Additionally, private parties are
authorized to sue for triple damages when they have been harmed by conduct that violates either
the Sherman or Clayton Act and to obtain a court order prohibiting the anticompetitive practice
prospectively.
8
Florida Antitrust Laws
Florida law also provides protections against anticompetitive practices. Chapter 542, F.S., the
Florida Antitrust Act of 1980, is intended to complement the body of federal law prohibiting
restraints of trade or commerce in order to foster effective competition.
9
It outlaws every
contract, combination, or conspiracy in restraint of trade or commerce in Florida
10
and any
person from monopolizing or attempting or conspiring to monopolize any part of trade.
11
Contracts in Restraint of Trade or Commerce
Generally, a contract in restraint of trade or commerce in Florida is unlawful.
12
However, non-
competition restrictive covenants
13
contained in employment agreements that are reasonable in
time, area, and line of business, are not prohibited.
14
In any action concerning enforcement of a
restrictive covenant, a court may not enforce a restrictive covenant unless it is set forth in a
writing signed by the person against whom enforcement is sought, and the person seeking
enforcement of a restrictive covenant must prove the existence of one or more legitimate
business interests justifying the restrictive covenant.
15
The term “legitimate business interest”
includes, but is not limited to:
• Trade secrets;
16
• Valuable confidential business or professional information that does not otherwise qualify as
trade secrets;
7
“Interlocking directorates” means the same person making business decisions for competing companies. See also id.
8
Id.
9
Section 542.16, F.S.
10
Section 542.18, F.S.
11
Section 542.19, F.S.
12
Section 542.18, F.S.
13
Section 542.335, F.S. employs the term “restrictive covenants” and includes all contractual restrictions such as
noncompetition/nonsolicitation agreements, confidentiality agreements, exclusive dealing agreements, and all other
contractual restraints of trade. See Henao v. Prof'l Shoe Repair, Inc., 929 So.2d 723, 726 (Fla. 5th DCA 2006).
14
Section 542.335(1), F.S.
15
Id.
16
Section 688.002(4), F.S., defines a “trade secret” as information, including a formula, pattern, compilation, program,
device, method, technique, or process that derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use; and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. BILL: CS/CS/CS/SB 922 Page 4
• Substantial relationships with specific prospective or existing customers, patients, or clients;
• Customer, patient, or client goodwill associated with:
o An ongoing business or professional practice, by way of trade name, trademark, service
mark, or “trade dress;”
o A specific geographic location; or
o A specific marketing or trade area; or
• Extraordinary or specialized training.
17
• Any restrictive covenant not supported by a legitimate business interest is unlawful and is
void and unenforceable.
18
A person seeking enforcement of a restrictive covenant must prove
that the contractually specified restraint is reasonably necessary to protect the legitimate
business interest or interests justifying the restriction.
19
Trade Secrets
Section 812.081, F.S., defines a “trade secret” as the whole or any portion or phase of any
formula, pattern, device, combination of devices, or compilation of information which is for use,
or is used, in the operation of a business and which provides the business an advantage, or an
opportunity to obtain an advantage, over those who do not know or use it. The term includes any
scientific, technical, or commercial information, including financial information, and includes
any design, process, procedure, list of suppliers, list of customers, business code, or
improvement thereof, whether tangible or intangible, and regardless of whether or how it is
stored, compiled, or memorialized physically, electronically, graphically, photographically, or in
writing. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of
skill in the business, art, or field to which the subject matter pertains, a trade secret is considered
to be:
• Secret;
• Of value;
• For use or in use by the business; and
• Of advantage to the business, or providing an opportunity to obtain an advantage, over those
who do not know or use it.
20
Penalties
Florida law criminalizes the disclosure or theft of trade secrets. For example:
• Section 815.04, F.S., makes it a third degree felony
21
for a person to willfully, knowingly,
and without authorization disclose or take data, programs, or supporting documentation that
are trade secrets that reside or exist internal or external to a computer, computer system,
computer network, or electronic device.
22
• Section 812.081(2), F.S., makes it a third degree felony for a person to willfully and without
authorization, obtain or use, or endeavor to obtain or use, a trade secret with the intent to
either temporarily or permanently:
17
Section 542.335(1)(b), F.S.
18
Id.
19
Section 542.335(1)(c), F.S.
20
Section 812.081(1)(f), F.S.
21
A third degree felony is punishable by up to 5 years imprisonment and a $5,000 fine. See ss. 775.082 and 775.083, F.S.
22
The offense is a second degree felony if committed for the purpose of devising or executing any scheme or artifice to
defraud or to obtain property. BILL: CS/CS/CS/SB 922 Page 5
o Deprive or withhold from the trade secret’s owner the control or benefit of a trade secret;
or
o Appropriate a trade secret to his or her own use or to the use of another person not
entitled to the trade secret.
• Section 812.081(3), F.S., makes it a second degree felony
23
for a person who traffics in, or
endeavors to traffic in, a trade secret that he or she knows or should know was obtained or
used without authorization.
Restrictive Covenants in Florida Health Care
Under s. 542.336, F.S., a restrictive covenant entered into with a physician who practices a
medical specialty in a county where one entity employs or contracts with all physicians who
practice that specialty in that county, is not supported by a legitimate business interest and is
void and unenforceable.
24
The restrictive covenant remains void and unenforceable until three
years after the date on which a second entity that employs or contracts with one or more
physicians who practice that specialty begins serving patients in that county.
25
In 21st Century Oncology, Inc., the plaintiff sought a preliminary injunction to enjoin the
application and enforcement of s. 542.336, F.S. In August of 2019, the U.S. District Court for the
Northern District of Florida denied the injunction. While s. 542.336, F.S., was found to impair
the plaintiff's employment contracts within the meaning of the Contracts Clause, the court held
that the degree of impairment did not outweigh the statute’s significant, legitimate public
purpose.
26
Federal Trade Commission Rule
In September of 2024, the FTC’s rule
27
against noncompete agreements was set to take effect to
promote competition by banning noncompete agreements nationwide.
28
Under the rule, existing
23
A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. See ss. 775.082 and 775.083,
F.S.
24
Section 542.336, F.S.
25
Id.
26
The ostensible public purpose of section 542.336, F.S., is to reduce healthcare costs and improve patients’ access to
physicians. See s. 542.336, F.S.; ECF No. 64 at 8 (Attorney General's post-hearing brief, stating “section 542.336 explicitly
sets forth its own rational basis in declaring that the restrictive covenants addressed by it are not supported by a legitimate
business interest, restrict patient access to physicians, and increase costs”). It is well settled that access to affordable
healthcare is a legitimate state interest.” See also 21st Century Oncology, Inc. v. Moody, 402 F. Supp. 3d 1351, 1359 (N.D.
Fla. 2019). “Allopathy” is a system of medical practice that emphasizes diagnosing and treating disease and the use of
conventional, evidence-based therapeutic measures (such as drugs or surgery). See also Merriam-Webster Dictionary,
“allopathy,” available at https://www.merriam-webster.com/dictionary/allopathy (last visited April 17, 2025). “Osteopathy”
is a system of medical practice that emphasizes a holistic and comprehensive approach to patient care and utilizes the
manipulation of musculoskeletal tissues along with therapeutic measures to prevent or treat disease. See also Merriam-
Webster Dictionary, “osteopathy,” available at https://www.merriam-webster.com/dictionary/osteopathy (last visited April
17, 2025).
27
16 C.F.R. § 910.1-6
28
FTC Announces Rule Banning Noncompetes, The Federal Trade Commission, available at https://www.ftc.gov/news-
events/news/press-releases/2024/04/ftc-announces-rule-banning-noncompetes (last visited April 17, 2025). BILL: CS/CS/CS/SB 922 Page 6
noncompete agreements
29
for most workers would no longer be enforceable.
30
Existing
noncompete agreements for senior executives
31
would remain in force; however, new
noncompete agreements, even if they involve senior executives would be banned.
32
Additionally,
the rule requires employers to provide notice to workers other than senior executives who are
bound by an existing noncompete agreement that they will not be enforceable.
33
Ultimately, the
rule determined that it is an unfair method of competition for employers to enter into
noncompete agreements with workers, and therefore noncompete agreements are a violation of
Section 5 of the FTC Act.
34
On July 23, 2024, the U.S. District Court for the Eastern District of Pennsylvania issued a
decision, which held that the FTC had the authority to issue its rule banning most employment
based noncompete agreements.
35
On August 14, 2024, the U.S. District Court for the Middle District of Florida entered a limited
injunction prohibiting the FTC from enforcing the FTC’s noncompete rule. The court used the
“major questions doctrine” to argue that the FTC did not have a valid grant of congressional
authority to enact the rule.
36
On August 20, 2024, the U.S. District Court for the Northern District of Texas granted summary
judgement to the plaintiffs in Ryan, LLC v. FTC, which sets aside the FTC’s noncompete clause
rule.
37
The court found that the FTC has no authority to promulgate substantive rules regarding
unfair competition, and the rule is invalid because it is arbitrary and capricious.
38
29
The rule defines “noncompete clause” as one that prevents the worker from seeking or accepting new employment “after
the conclusion” of the current employment. Thus, under the rule “garden leave agreements” may or may not be prohibited
depending on how they are structured. For instance, a garden leave agreement where the employee remains employed but is
not allowed to access the business during the garden leave period should be permissible. See id.
30
Id. The following are exceptions listed under the rule: (1) noncompete agreements that are entered into by a person
pursuant to a bona fide sale of a business entity, of the person’s ownership interest in a business entity, or of all or
substantially all of a business entity’s operating assets; (2) noncompete agreements where a cause of action related to a
noncompete clause accrued prior to the effective date of the rule; and (3) where a person has a good faith basis to believe that
the rule is inapplicable. See 16 C.F.R. § 910.1-6.
31
The FTC defines “senior executive” as someone who earns at least $151,164 per year and has “policy making” authority.
“Policy making” authority means a role that involves making decisions that significantly impact business.
32
Id. The final rule defines “senior executives” as workers earning more than $151,164 annually and who are in policy-
making positions. See id. See also 16 C.F.R. § 910.1-6.
33
Id.
34
Id. The FTC found that employers have several alternatives to noncompete agreements that still enable them to protect
their investments without having to enforce a noncompete agreement. For instance, trade secret laws and non-disclosure
agreements both provide employers with means to protect proprietary and other sensitive information. See id.
35
ATS Tree Services, LLC. v. Federal Trade Commission, WL 3511630 (E.D. Pa. 2024). The court found that the FTC has
broad authority to regulate “unfair methods of competition” under the FTC Act. See also 15 U.S.C. §§ 41-58.
36
Properties of the Villages, Inc. v. Federal Trade Commission, WL 3870380 (M.D. Fla. 2024). The “major questions
doctrine” requires administrative agencies issuing rules of extraordinary economic and political significance to point to clear
and unambiguous congressional intent to confer such power on the agency.
37
Ryan, LLC v. Federal Trade Commission, 746 F.Supp.3d 369 (N.D. Tex. 2024). This is a nationwide injunction.
38
Id. BILL: CS/CS/CS/SB 922 Page 7
The term “garden leave”
The term or idea of “garden leave” or “gardening leave” first appears to have originated in
England at the end of World War I. Soldiers suffering from shell shock and unable to fight would
be sent home with full pay to tend to their garden, growing food for the war effort while
rehabilitating. The term came into popular use in 1986 when it was used in the BBC sitcom Yes,
Prime Minister. It is thought that the leave is called gardening leave because that’s all the
employee can do: they can’t come in to work and they can’t work for anyone else. All they can
do is work in or sit in their garden.
39
III. Effect of Proposed Changes:
Section 1 of the bill creates Part I of ch. 542, F.S., consisting of existing ss. 542.15-542.36, F.S.,
entitled “The Florida Antitrust Act of 1980.” The new Part I contains all of current ch. 542, F.S.,
without substantive amendment. Sections 3 to 21 of the bill make technical changes to those
sections to account for the creation of part of a chapter.
Section 2 of the bill creates Part II of ch. 542, F.S., consisting of ss. 542.41-542.45, F.S., entitled
the “Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic
Growth (CHOICE) Act.”
The bill establishes that the Legislature finds a proper and legitimate state interest is served by
enforcing strong legal protections in contracts between employers and contracted personnel
which encourage optimal levels of information sharing and training and development. The
Legislature further finds that alternative means of protecting confidential information and client
relationships, such as nondisclosure agreements, fixed-duration term contracts, and
nonsolicitation clauses in employment contracts, are inadequate to protect against the significant
global risks faced by companies in Florida. Additionally, the Legislature finds that predictability
in the enforcement of contracts described in Part II of ch. 542, F.S., encourages investment in
Florida. Therefore, the Legislature determines and declares that Part II of ch. 542, F.S., fulfills an
important state interest.
Definitions
The bill creates the following definitions:
• “Annual mean wage of employees in Florida” or “annual mean wage” means the most recent
annual mean wage as calculated by the United States Department of Labor Bureau of Labor
Statistics, or its successor calculation, for all occupations in Florida.
40
• “Benefit” means access to health insurance, life insurance, or disability insurance that is the
same as or similar to the insurance that a covered employee had access to and at the same
cost to that employee during the month before the commencement of his or her notice period.
39
Edmonson, Gardening Leave?, March 25, 2019, available at https://www.linkedin.com/pulse/gardening-leave-david-
edmondson (last visited April 17, 2025).
40
According to the United States Department of Labor Bureau of Labor Statistics, the most recent annual mean wage for all
occupations in Florida is $60,210. Occupational Employment and Wage Statistics, U.S. Bureau of Labor Statistics, available
at https://www.bls.gov/oes/current/oes_fl.htm#00-0000 (last visited April 17, 2025). BILL: CS/CS/CS/SB 922 Page 8
• “Covered employee” means an employee or an individual contractor who earns or is
reasonably expected to earn a salary greater than twice the annual mean wage of the county
in Florida which the employer has its principal place of business, or the county in Florida in
which the employee resides if the employer’s principal place of business is not in Florida.
The term does not include a person classified as a medical professional
41
as defined in s.
1006.0626, F.S.
• “Covered employer” means an entity or individual who employs or engages a covered
employee.
• “Covered garden leave agreement” means a written agreement, or part of a written
agreement, between a covered employee and covered employer in which:
o The covered employee and covered employer agree to up to, but no more than, 4 years of
advance, express notice before terminating the employment or contractor relationship;
o The covered employee agrees not to resign before the end of such notice period; and
o The covered employer agrees to retain the covered employee for the duration of such
notice period and to continue paying the covered employee the same salary and providing
the same benefits that the covered employee received from the covered employer in the
last month before the commencement of the notice period.
42
• “Covered noncompete agreement” means a written agreement, or a portion of a written
agreement, between a covered employee and a covered employer in which, for a period not
to exceed 4 years and within a specified geographic area, which may be global in scope, the
covered employee agrees not to assume a role with or for another business, entity, or
individual:
o In which the covered employee would provide services similar to the services provided to
the covered employer during the 3 years preceding the noncompete period; or
o In which it is reasonably likely the covered employee would use the confidential
information or customer relationships of the covered employer.
• “Noncompete period” means the time from the covered employee’s termination of
employment through the end of the agreed-upon postemployment period of noncompetition
as set forth in the covered noncompete agreement.
• “Notice period” means the date from the covered employee’s or covered employer’s written
notice of intent to terminate the covered employee’s employment through the date of
termination as set forth in a covered garden leave agreement.
• “Primary place of work” means the location where the covered employee spends more work
time than any other single workplace.
• “Salary” means the base compensation, calculated on an annualized basis, which a covered
employer pays a covered employee, including a base wage, a salary, a professional fee, or
other compensation for personal services, and the fair market value of any benefit other than
cash. Salary does not include health care benefits, severance pay, retirement benefits,
expense reimbursement, distribution of earnings and profits not included as compensation for
personal services, discretionary incentives or awards, or anticipated but indeterminable
compensation, including tips, bonuses, or commissions.
41
Section 1006.0626, F.S., defines “medical professional” as a physician licensed under chapter 458 or chapter 459, F.S., a
physician assistant licensed under chapter 458 or chapter 459, F.S., or an advanced practice registered nurse licensed under
s. 464.012, F.S, who provides epilepsy or seizure disorder care.
42
The bill provides that the covered employer is not obligated to provide discretionary incentive compensation or benefits or
have the covered employee continue performing any work during the notice period. BILL: CS/CS/CS/SB 922 Page 9
Applicability -- In General
This section of the bill applies to a covered garden leave agreement or a covered noncompete
agreement with a covered employee
43
who maintains a primary place of work in Florida, as well
as to a covered employee who is subject to a covered garden leave agreement or a covered
noncompete agreement with a covered employer whose principal place of business is in Florida.
If any provision of ss. 542.44 or 542.45, F.S., are in conflict with any other law, the provisions of
ss. 542.44 or 542.45, F.S., apply.
Certain Garden Leave Agreements Authorized
The bill provides that a covered garden leave agreement does not violate public policy as a
restraint of trade
44
or as an attempt to monopolize trade or commerce
45
in Florida, and is fully
enforceable according to its terms, if the following requirements are met:
• A covered employee is provided proper notice of the covered garden leave agreement before
its execution; and
• The covered garden leave agreement provides that:
o After the first 90 days of the notice period, the covered employee does not have to
provide services to the covered employer;
o The covered employee may engage in nonwork activities at any time, including during
normal business hours, during the remainder of the notice period; and
o The covered employee may, with the permission of the covered employer, work for
another employer while still employed by the covered employer during the remainder of
the notice period.
Certain Noncompete Agreements Authorized
The bill establishes that a covered noncompete agreement does not violate public policy as a
restraint of trade, or as an attempt to monopolize trade or commerce in Florida, and is fully
enforceable according to its terms, provided that:
• A covered employee was advised, in writing, of the right to seek counsel prior to execution
of the covered noncompete agreement and was provided with proper notice;
• A covered employee acknowledges, in writing, that in the course of his or her employment
he or she will receive confidential information or customer relationships; and
• A covered noncompete agreement provides that the noncompete period is reduced day-for-
day by any nonworking portion of the notice period, pursuant to a covered garden leave
agreement between the covered employee and the covered employer, if applicable.
Notice Requirements for Garden Leave Agreements and Noncompete Agreements
The bill requires proper notice of a covered garden leave agreement or a covered noncompete
agreement in the following circumstances:
43
A “covered employee” means an employee or individual contractor who earns or is reasonably expected to earn a salary
greater than twice the annual mean wage, or who has access to his or her employer’s or client’s confidential information or
customer relationships. A court must presume that an employee or individual contractor has access to confidential
information or customer relationships if the employee or individual contractor acknowledges the access or receipt of such
access in writing.
44
See s. 542.18, F.S.
45
See s. 542.19, F.S. BILL: CS/CS/CS/SB 922 Page 10
• For a prospective covered employee, at least 7 days before a prospective covered employee’s
offer of employment expires; or
• For a current covered employee, at least 7 days before an offer to enter into a covered garden
leave agreement expires.
In either case, a prospective or current covered employee is required to acknowledge in writing
that he or she was expressly advised of the right to seek legal counsel before the execution of the
covered garden leave agreement or the covered noncompete agreement. However, the covered
employer may, without breach of the covered garden leave agreement, waive any portion of the
notice requirement by providing at least 30 days’ advance notice in writing to the covered
employee.
Other Agreements with Employee
The bill provides that this section of the bill does not affect or limit the enforceability of any
other employment agreement or any other agreement.
Remedies -- Garden Leave Agreements
Upon application by a covered employer, a court must preliminarily enjoin a covered employee
from providing services to any business, entity, or individual other than the covered employer
during the notice period. The court may modify or dissolve the injunction only if the covered
employee establishes by clear and convincing evidence based on public or other nonconfidential
information that:
• The covered employee will not perform, during the notice period, any work similar to the
services provided to the covered employer during the 3-year period preceding the
commencement of the notice period, or use confidential information or customer
relationships of the covered employer;
• The covered employer has failed to pay or provide the salary and benefits provided for in the
covered garden leave agreement during the notice period and has had a reasonable
opportunity to cure the failure; or
• The business or individual seeking to employ or engage the covered employee is not engaged
in, and is not planning or preparing to engage in during the noncompete period:
o Business activity similar to that engaged in by the covered employer; and
o In the geographic area specified in the noncompete agreement.
Remedies -- Noncompete Agreements
Upon application by a covered employer, a court must preliminarily enjoin a business, an entity,
or an individual from engaging a covered employee during the covered employee’s noncompete
period. The court may modify or dissolve the injunction only if the business, entity, or individual
establishes by clear and convincing evidence, based on public or other nonconfidential
information, that:
• The covered employee will not provide any services similar to the services provided to the
covered employer during the 3-year period preceding the commencement of the noncompete
period, or use confidential information or customer relationships of the covered employer; or BILL: CS/CS/CS/SB 922 Page 11
• The business or individual seeking to employ or engage the covered employee is not engaged
in, and is not planning or preparing to engage in, any business activity similar to those
engaged in by the covered employer during the noncompete period.
Miscellaneous Other Provisions Regarding Garden Leave Agreements and Noncompete
Agreements
Any information filed with the court which the covered employer deems to be confidential must
be filed under seal to protect trade secrets or avoid substantial injury. This provision will require
parties to a lawsuit regarding a covered garden leave agreement or covered noncompete
agreement will be required to comply with the filing requirements of Rule 2.420(d)(2) of the
Florida Rules of General Practice and Judicial Administration and the court will have to rule that
the information qualifies for an exemption pursuant to existing public records laws.
The injunctive relief provided is not an exclusive remedy, and a prevailing covered employer is
entitled to recover all available monetary damages for all available claims.
In any action to enforce this section, the prevailing party is entitled to reasonable attorney fees
and costs.
If the covered employee engages in gross misconduct against the covered employer, the covered
employer may reduce the salary or benefits of the covered employee or take other appropriate
action during the notice period or the noncompete period, which reduction or other action may
not be considered a breach of the covered garden leave agreement or the covered noncompete
agreement.
The bill provides that any action regarding a restrictive covenant that does not meet the
definitions of covered garden leave agreement or covered noncompete agreement governed by
the provisions created by this bill is governed by s. 542.335, F.S. That section generally regulates
restraints on trade or commerce.
Effective Date
Section 22 of the bill provides that it takes effect July 1, 2025.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Sections 542.44(2)(b) and 542.45(2)(b), created by this bill, provide that: “Any
information filed with the court which the covered employer deems to be confidential
must be filed under seal to protect confidentiality or avoid substantial injury.” To the
extent that this language creates a directive requiring parties to ask the court to seal the
information under existing public records law, they are enforceable. However, this BILL: CS/CS/CS/SB 922 Page 12
language cannot create a new public records exemption because a new exemption must
be created in a separate bill. Fla. Const. Art. I, s. 24(c).
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Article VI, Paragraph 2 of the U.S. Constitution, commonly referred to as the Supremacy
Clause, establishes that the federal constitution, and federal law generally, take
precedence over state laws and constitutions. The Supremacy Clause also prohibits states
from interfering with the federal government’s exercise of its constitutional powers and
from assuming any functions that are exclusively entrusted to the federal government. It
does not, however, allow the federal government to review or veto state laws before they
take effect.
46
As described in the “Present Situation” of this bill analysis, on August 20, 2024, the U.S.
District Court for the Northern District of Texas issued an order stopping the FTC from
enforcing the noncompete rule. The FTC has appealed the decision.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
46
Supremacy Clause, Cornell Law School, Legal Information Institute, available at
https://www.law.cornell.edu/wex/supremacy_clause (last visited April 17, 2025). BILL: CS/CS/CS/SB 922 Page 13
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 542.41, 542.45, 542.42, 542.43,
and 542.44.
This bill amends the following sections of the Florida Statutes: 542.15, 542.16, 542.17, 542.20,
542.22, 542.23, 542.235, 542.24, 542.25, 542.26, 542.27, 542.28, 542.29, 542.30, 542.31,
542.32, 542.33, 542.35, and 542.36.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS/CS by Rules on April 16, 2025:
The committee substitute changes the definition of "covered employee," to mean an
employee or an individual contractor who earns or is reasonably expected to earn a salary
greater than twice the annual mean wage of the county in Florida which the employer has
its principal place of business, or the county in Florida in which the employee resides if
the employer's principal place of business is not in Florida. The committee substitute
clarifies that a covered noncompete agreement does not violate public policy as a
restraint of trade if certain requirements are met, including the requirement that a covered
employee acknowledges in writing, that in the course of his or her employment he or she
will receive confidential information or customer relationships. Additionally, the
committee substitute provides that a court may modify or dissolve an injunction awarded
for breach of a covered noncompete agreement only if the covered employee establishes
by clear and convincing evidence "based on public or other nonconfidential information"
that certain parameters are met. It also provides additional circumstances that would
authorize a court to modify or dissolve an injunction.
CS/CS by Judiciary on April 1, 2025:
The committee substitute renames the new Part II of ch. 542, F.S., which is created by the
bill, as the CHOICE Act; limits application of new statutes on covered agreements to
only a business whose principal place of business is in the state or to an employee whose
principal place of employment is in the state; and makes numerous grammar and style
improvements. It also makes technical changes to ss. 542.15 through 542.36, F.S., to
conform to the new classification as Part I of ch. 542, F.S.
CS by Commerce and Tourism on March 17, 2025:
The committee substitute clarifies that a covered employer is not obligated to provide
“discretionary benefits” or have the covered employee continue performing any work
during the notice period. The amendment also clarifies that a provision should read
“covered garden leave agreement,” instead of “covered garden agreement.” Lastly, the
amendment fixes a drafting error to the title of a subsection in the bill. BILL: CS/CS/CS/SB 922 Page 14
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.