Florida's new Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act, also known as the CHOICE Act, made it easier for employers to enforce legitimate business interests with covered garden leave agreements and covered noncompete agreements. The two most significant changes are:

1. Protections can be extended for up to four years; and
2. Courts are required to issue preliminary injunctions to enforce the protections unless the employee or contractor can demonstrate, by clear and convincing evidence, that the agreement is unenforceable or unnecessary to prevent unfair competition.

The CHOICE Act applies to covered employees or independent contractors earning more than twice the annual mean wage in the Florida county where either (i) the covered employer’s principal place of business is located or (ii) where the covered individual resides if the covered employer’s business is located outside of Florida. It does not cover healthcare practitioners. 

Garden leave agreements are alternatives to standard noncompete agreements where an employee is compensated for the time they must remain out of the workforce. These types of agreements are gaining more popularity and recognition in state legislatures. 

Under the CHOICE Act, employers require covered employees or contractors to provide advance notice — up to four years—before employment or contract termination. During this notice period, employees remain on the employer’s payroll at their base salary and benefits but are not entitled to any discretionary compensation. The Act only allows employers to require the worker to provide services for the first ninety days of the notice period. After this, the worker may also work during the remainder of the notice period for another employer so long as the covered employer has provided permission to the worker.

With either type of agreement, the contract must: be in writing; advise the worker of their right to consult legal counsel; provide at least seven days for review before execution; and include a written acknowledgment from the worker confirming receipt of confidential information or substantial client relationships during employment.