Orbiting Opportunity: Why Relocating Employees to Florida is a Strategic Magnet for Retaining Mission-Critical Staff

With the Federal Trade Commission’s non-compete ban out of the picture, the Supreme Court barring most universal injunctions, and the National Labor Relations’ Board directive identifying non-compete agreements as violating the National Labor Relations Act rescinded, the enforceability of non-competes is even more of a state-by-state issue.

Florida recently passed HB1219, the Contracts Honoring Opportunity, Investment, Confidentiality & Economic Growth Act (“CHOICE Act”), which, once signed by Governor DeSantis, and coupled with a pro-enforcement judiciary, will make Florida one of the most employer-protective jurisdictions, and most restrictive state on employee mobility, targeting high earners, allowing employers to restrict them from competing for up to four years with mandatory injunctions. This is on top of Florida’s statutory protections that already allowed reasonably tailored non‑compete covenants under Fla. Stat. § 542.335.

Under Fla Stat. 542.335, employers seeking to enforce a non-compete had to prove the agreement is necessary and reasonable by showing: (1) reasonable limitations on the time, geographic scope, and line of business restrictions contained in the agreement; (2) the existence of a written agreement signed by the employee; and (3) a legitimate business interest justifying the restrictive covenant, such as protection of trade secrets, confidential information, and customer relationships.

The CHOICE Act does not replace the existing non-compete law; rather, it supplements the existing legal framework and goes further. The CHOICE Act will be effective for agreements signed on or after July 1, 2025, and allows four-year non-compete agreements if the restricted worker had seven days to review it and knew they had a right to legal counsel at the time of review. The Act also addresses garden leave arrangements between employers and employees or contractors earning twice their home county’s annual mean wage in which employees may agree to not resign employment before a notice period of up to four years and employers may agree to retain the employee for the duration of said notice period with the same salary and benefits. This means they could not go out into the market and compete during that time.

For an employer to receive the benefits of the CHOICE Act (a presumption of enforceability), any existing agreement must fall within the definition of a covered agreement and meet its requirements. Here is a comparison of Florida’s non-compete landscape for non-compete agreements before and after the CHOICE Act:

What is Required for a Covered Non-Compete Agreement

While the CHOICE Act offers employers significant leverage in retaining and restricting the mobility of top talent, it does not come without specific requirements. In order for a non-compete to be covered under the CHOICE Act it must:

• Provide the employee notice that the employee has a right to seek counsel and a 7-day review period, which is similar to the Illinois’ Freedom to Work Act, which has a 14-day requirement.
• The non-compete must have the employee acknowledge that in the employee’s employment, the employee will have access to confidential information and customer relationships.
• The duration of the non-compete can be up to, but no more than, 4 years post-employment, and must be reduced day-for-day by any overlapping garden leave, discussed below.
• To trigger the assumption for a preliminary injunction, it must have a reasonable geographic scope.
• The employer may cut salary/benefits during the non-compete period if the employee commits “gross misconduct.”

Garden Leave

The CHOICE Act also covers garden leave agreements, which also protect an employer’s confidential information, but differ as to when protection applies, and apply only when the employee remains employed with the employer, whereas a non-compete applies after employment.

“Garden leave” refers to a period where an employee remains employed, but typically provides little to no actual work for the employer, yet continues to receive the employee’s regular salary and benefits. During this period, an employee on garden leave cannot work for a competitor because the employee is still bound by the contractual terms of their employment, including applicable confidentiality obligations, a duty of loyalty, and similar restrictions.

Under the CHOICE Act, a garden leave agreement will qualify for coverage if all of the above elements are present, and also the following:

• Only applies to employees expected to earn more than 2 times the annual mean wage, meaning rank-and-file employees will not be covered.
• Employer must continue to pay the employee’s base salary and provide benefits throughout the notice period, though bonuses and commissions may be excluded, which may continue up to 4 years.
• After the first 90 days, the employee does not need to perform services and may pursue hobbies, travel, etc.
• The employee may accept other employment during the remainder of the notice period, but only with the employer’s written permission.
• The employee may unilaterally reduce any remaining notice period by giving at least 30 days’ written notice.
• The employee must (a) receive the agreement in writing; (b) be notified in writing to consult counsel; (c) get no less than 7 days to review; and acknowledge receipt of confidential information/ customer relationships.
• The employer may reduce pay/benefits during the period if the employee engages in gross misconduct.

Practical Steps for Employers

1. Identify covered talent. Calculate twice the annual mean wage for each Florida county where you have operations or where highly compensated remote employees reside.
2. Audit existing covenants. Agreements signed before July 1, 2025 remain under § 542.335; decide whether re‑papering key employees post‑7/1 makes strategic sense.
3. Draft CHOICE‑compliant templates and build in the following:
• 7‑day review & counsel language
• Express acknowledgment of confidential information/customer relationships
• Automatic day-for-day offset against any concurrent garden‑leave notice period
4. Update onboarding timelines. The offer letter must remain open (or the draft agreement delivered) at least 7 days before execution.
5. Coordinate with incentive plans. Because garden‑leave pay excludes incentive comp, confirm how equity vesting, bonus eligibility, and claw‑backs interact with four‑year no‑work periods.
6. Prepare for aggressive enforcement. Map internal processes for rapid filing of verified complaints and injunction motions; courts must issue preliminary relief quickly under the Act.
7. Train recruiters & managers. Hiring from competitors now carries greater risk: the statute allows injunctions against new employers who knowingly hire a covered employee during a restricted period.
8. Monitor federal litigation. If the FTC rule regains traction, Florida‑regime advantages could shrink. Until then, CHOICE offers a potent lever against high‑level defections.  

Key Takeaways for the C‑Suite & HR

• Four years is the new two. Florida has doubled the presumptively reasonable term for high earners, an outlier compared with the national trend toward shorter or prohibited non‑competes.
• Money talks. Only employees above the county‑specific salary threshold can be bound. Employers may need to adjust compensation structures, e.g., shift variable pay into base salary) if they want CHOICE protection.
• Injunctions made easy. The statutory presumption flips courtroom leverage; plan for swift TRO filings when star talent walks.
• Garden leave gains teeth. Paid but idle periods can now stretch years, creating a useful bridge where immediate post‑departure competition poses acute risk.
• Compliance is binary. Miss any technical step, such as 7‑day review, written acknowledgment, day‑for‑day reduction, and you forfeit the CHOICE Act’s presumption, reverting to the pre-CHOICE Act § 542.335 burden‑shifting analysis.
• Competitive advantage for Florida employers. Coupled with the influx of financial and tech firms, the CHOICE Act underscores Florida’s self‑branding as “Wall Street South.”  

Final Thoughts

Florida’s CHOICE Act gives employers a powerful new option, but only if they execute with precision. Pair robust drafting with careful workforce planning and stay attuned to the evolving federal landscape. As always, consult counsel before rolling out new restrictive covenant strategies and always feel free to reach out to one of our attorneys in our Labor and Employment Practice Group, and for assistance with Florida-specific legal issues, please reach out to our Fort Lauderdale legal team.