By Steven M. Katzman
A non-compete agreement is worth exactly as much as a court will enforce, and in Florida that value is higher than almost anywhere else in the country. A key executive leaves for a competitor, a sales team walks out the door with the customer list, a partner sells the business and then reopens across the street, and the first question is always the same: will the covenant hold? For years the answer ran through a single, employer-friendly statute. Since July 1, 2025, a second framework sits beside it, and it moved the ground under everyone who drafts, signs, or fights these agreements.
A word of caution before anything else: the outcome of a non-compete dispute is usually decided in the first two weeks, before anyone reaches the merits. These cases are won and lost on speed and evidence, employers race to the courthouse for an injunction while the customer relationships are still warm, and departing employees who forwarded files, copied contacts, or started soliciting before resigning hand the other side its best exhibits. Whether you are enforcing a covenant or trying to escape one, preserve everything, say nothing you would not want read aloud in court, and get counsel involved before the injunction hearing, not after. What you do in those first days often matters more than what the contract says.
This guide explains how Florida courts actually treat non-compete and related restrictive covenants: the long-standing framework under Section 542.335, the new CHOICE Act regime for high earners, what “reasonable” really means, and where these agreements break down.
Two frameworks now govern Florida non-competes
Every restrictive covenant in Florida now runs through one of two statutes, and knowing which one applies is the first strategic decision in any dispute.
- Fla. Stat. § 542.335 is the default. It has governed restrictive covenants since 1996 and still controls the vast majority of employees, contractors, franchisees, and business sellers. It is already one of the most enforcement-friendly non-compete laws in the nation.
- The Florida CHOICE Act, Fla. Stat. §§ 542.41-542.45, took effect July 1, 2025, and creates a separate, even stronger regime for high-earning “covered employees” and for a new tool called garden leave.
The two are not interchangeable. An agreement drafted under one does not automatically get the benefits of the other, and an employer that wants the CHOICE Act’s advantages has to build the agreement to qualify. Most covenants in force today, and most that firms still sign, live under § 542.335, so we start there.
Section 542.335: the legitimate business interest requirement
Under § 542.335, a restrictive covenant is enforceable only if it is in writing, signed by the person to be restrained, and, critically, tied to a legitimate business interest. Protecting yourself from ordinary competition is not enough; Florida will not enforce a covenant whose only purpose is to keep a former employee from competing. The employer must plead and prove a specific interest the restraint protects. The statute recognizes several, including:
- Trade secrets, as defined by Florida’s trade secret law
- Valuable confidential business or professional information that does not rise to the level of a trade secret
- Substantial relationships with specific existing or prospective customers, patients, or clients
- Customer goodwill associated with a trademark, a geographic location, or a specific marketing or trade area
- Extraordinary or specialized training provided to the employee
If no legitimate business interest supports the restraint, the covenant is unenforceable no matter how carefully it was drafted. This is the single most common battleground in § 542.335 litigation, and it is why generic, one-size-fits-all non-competes handed to every employee often collapse: the receptionist and the top rainmaker cannot be restrained on the same theory.
What “reasonable” means: time, area, and line of business
Once a legitimate business interest is established, the restraint must be reasonably necessary to protect it, and reasonableness is measured in three dimensions: duration, geography, and scope of activity. Florida makes this analysis unusually predictable by building in presumptions. For a former employee, agent, or independent contractor, a restraint of six months or less is presumed reasonable, and one longer than two years is presumed unreasonable. Different presumptions apply to franchisees and dealers, to sellers of a business (up to three years presumed reasonable, more than seven presumed unreasonable), and to covenants predicated on trade secrets (up to five years presumed reasonable).
Two features of the statute tilt the field toward enforcement and surprise people who assume non-competes are disfavored:
- Courts must blue-pencil overbroad covenants rather than void them. If a restraint is too long or too broad, the judge does not throw it out; the statute directs the court to modify it and enforce a reasonable version. An overreach is corrected, not fatal.
- Individualized hardship to the employee is off the table. Section 542.335 expressly forbids courts from considering the economic or personal hardship the covenant imposes on the person restrained. The argument “this will destroy my livelihood,” persuasive in many states, carries no legal weight in Florida.
The prevailing party is generally entitled to attorney’s fees, which raises the stakes on both sides and is one more reason these disputes are resolved deliberately rather than reflexively.
The CHOICE Act: a stronger regime for high earners
The CHOICE Act layers a new, decisively employer-friendly framework on top of § 542.335 for a defined class of workers. It applies only to a “covered employee”, defined as someone who earns, or is reasonably expected to earn, a salary greater than twice the annual mean wage of the Florida county where the employer keeps its principal place of business (or, if the employer is based out of state, the county where the employee lives). Health care practitioners are excluded. For most professionals and executives in South Florida, the threshold lands somewhere around the mid-six figures, and it is calculated on base salary, not total compensation.
For covered employees, the Act authorizes two instruments:
- Covered non-compete agreements lasting up to four years after employment ends, double the two-year period presumed reasonable under § 542.335.
- Covered garden leave agreements, a genuinely new tool, requiring up to four years’ advance notice of departure. During that notice period the employer keeps the employee on payroll at full base salary and benefits, but after the first 90 days need not give them any work, and the employee generally may not work for a competitor. The employer buys exclusivity by continuing to pay.
The trade-off for employers is procedure. To qualify, the agreement must advise the employee in writing of the right to seek legal counsel, give at least seven days to review before signing, and include the employee’s written acknowledgment that they will receive confidential information or customer relationships. Miss these steps and the agreement falls back to ordinary § 542.335 analysis.
The payoff is enforcement power that § 542.335 does not offer. When a covered employer sues, the court must issue a preliminary injunction sidelining the employee for the noncompete or notice period. The burden then flips: to dissolve it, the employee must show by clear and convincing evidence, using only non-confidential information, that they will not perform similar work or use the employer’s confidential information and customer relationships, or that the employer failed to pay the promised consideration. That is a steep hill, and it is meant to be.
Non-solicitation and non-disclosure: the quieter cousins
Not every restrictive covenant is a full non-compete, and the narrower ones are often both more enforceable and better suited to the interest at stake. A non-solicitation clause bars a departing employee from poaching customers or coworkers but lets them keep working in the field; because it maps directly onto the “substantial customer relationship” interest, courts enforce it readily. A non-disclosure or confidentiality agreement protects information without restricting employment at all. In practice, a tightly drawn non-solicitation paired with a strong NDA frequently protects a business better than a sweeping non-compete that invites a fight over reasonableness. When a covenant is violated, these claims also travel alongside business torts such as tortious interference and trade secret misappropriation, and alongside breach of the underlying employment or owner agreement.
If you are the one leaving: read before you sign, and before you resign
Employees and executives ask two questions, usually in the wrong order. Before signing, understand that in Florida the covenant will likely be enforced as written or blue-penciled to something close, so the time to negotiate scope, duration, and a carve-out for your specialty is at the offer stage, not at the exit. Before resigning, assume that everything you do is discoverable. Hypothetically: an executive bound by a two-year non-solicitation emails herself the customer pipeline “to be safe,” pitches three accounts the weekend before giving notice, and tells a colleague on a recorded line that the covenant “isn’t worth the paper it’s printed on.” She has just converted a defensible position into an injunction and a fee award. The disciplined path is the opposite: take nothing, solicit no one until counsel confirms what the covenant actually restricts, and let a lawyer read the agreement against both § 542.335 and, if your pay is high enough, the CHOICE Act.
Remedies and what is at stake
Non-compete cases are ultimately about injunctions, court orders stopping the former employee (and often the new employer) from continuing the conduct while the case proceeds. Damages follow, measured by lost profits and the value of diverted relationships, questions our financial damages practice builds with forensic accountants. Attorney’s fees for the prevailing party raise the temperature further. And because a company that hires talent bound by known covenants can be pulled into the case for tortious interference, the exposure is rarely limited to the individual who left. The through-line is that these disputes reward preparation and punish improvisation, on both sides of the “v.”
Frequently asked questions
Are non-compete agreements enforceable in Florida? Yes. Florida is one of the most enforcement-friendly states in the country. Under Fla. Stat. § 542.335 a non-compete is enforceable if it is in writing, supported by a legitimate business interest, and reasonable in time, area, and line of business. The 2025 CHOICE Act makes them even easier to enforce against high-earning covered employees.
How long can a Florida non-compete last? Under § 542.335, restraints against former employees of six months or less are presumed reasonable and those over two years presumed unreasonable. Under the CHOICE Act, covered non-compete and garden leave agreements for high earners can run up to four years.
What is a legitimate business interest? A specific interest the law will protect, such as trade secrets, valuable confidential information, substantial relationships with existing or prospective customers, customer goodwill, or extraordinary training. A covenant that only shields an employer from ordinary competition is not enforceable.
Can a court rewrite an overbroad non-compete? Yes. Section 542.335 requires courts to modify, or “blue-pencil,” an overbroad or overlong covenant and enforce a reasonable version rather than strike it entirely. Overreach is usually corrected, not fatal.
Does it matter that the non-compete will hurt my ability to earn a living? Not under Florida law. The statute expressly bars courts from considering the individualized economic hardship the covenant imposes on the person being restrained, an argument that works in many other states.
What is a garden leave agreement? A new tool under the CHOICE Act. Instead of barring competition after you leave, the employer requires long advance notice, up to four years, and keeps paying your base salary and benefits during that period while you generally cannot work for a competitor. After 90 days the employer need not assign you any work.
Can my new employer be sued too? Often, yes. A company that hires someone it knows is bound by a valid covenant can face a claim for tortious interference and can be enjoined alongside the employee. This is why sophisticated employers vet a candidate’s restrictions before extending an offer.
Talk to a Florida non-compete attorney
Restrictive covenants are won on speed, evidence, and knowing which framework governs before the other side does. The attorneys at KWBR have spent decades enforcing and defending non-compete, non-solicitation, and confidentiality agreements for companies, executives, and owners across Florida, in the courtroom and in arbitration, and we handle the disputes that grow out of them through our complex commercial litigation, corporate and shareholder, and business transactions practices. If an employee is leaving, a competitor is hiring your people, or you have been handed a covenant and a deadline, contact us for a confidential consultation while the evidence, and your options, are still intact.
This article is for general informational purposes and is not legal advice. The examples above are hypothetical illustrations, not real cases. Every covenant turns on its specific language and facts; consult a qualified Florida attorney about your situation.