Florida Non-Compete Enforcement in 2026: What the CHOICE Act Changed . . . and What It Didn’t

Jun 1
5 min read

Updated: Jul 24

Business owner reviewing a Florida non-compete agreement before signing.

A two-year, county-wide non-compete took a $340,000 bite out of a business owner who assumed his restriction was “standard.”

He left his employer to launch a competing company in the same Florida county. His old employment agreement carried a two-year, county-wide non-compete, and he figured nobody enforced those anymore. His former employer filed for an injunction inside thirty days, and the court granted it. For twenty-four months he could not operate in his industry in that county. He kept paying his leased office. He kept paying his salesperson. He moved the business to North Florida while his clients, his network, and his pipeline all stayed in South Florida. Revenue over those two years ran about twenty percent of what he had projected.

Florida courts enforce non-competes. They always have. The mistake was not the restriction, it was assuming the restriction didn’t matter. One hour with a lawyer before he gave notice would have changed the outcome. One hour after did nothing.

That reality has not softened in 2026. For one class of employee, Florida law now leans harder toward enforcement than it did a year ago. Here is what changed, what didn’t, and what both sides should do about it.

The framework before the amendments: § 542.335

For the last thirty years, one statute has governed restrictive covenants in Florida: section 542.335, Florida Statutes. It reaches non-competes, customer non-solicits, and similar restraints, and it is neither the employer’s rubber stamp nor the employee’s escape hatch people assume.

Under § 542.335, the party seeking to enforce a covenant must plead and prove two things: a legitimate business interest justifying the restraint, and that the restraint is reasonably necessary to protect that interest. The statute defines legitimate business interests to include trade secrets; valuable confidential business or professional information that otherwise does not qualify as trade secrets; substantial relationships with specific existing or prospective customers; customer goodwill tied to an ongoing business or professional practice by way of trade name, trademark, service mark, or “trade dress,” geographic location, or trade area; and extraordinary or specialized training. A bare desire to avoid competition does not qualify.

Duration drives much of the analysis. For an ordinary employee covenant, Florida law presumes a restraint of six months or less reasonable and a restraint of more than two years unreasonable; restraints predicated on trade secrets carry longer presumptive windows. Between those poles, reasonableness is litigated on the facts. Once the employer makes its prima facie case, the burden shifts: the employee must show the restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest or interests, and if it is, the court does not discard it. It narrows the covenant and enforces what remains. Courts construe these covenants in favor of the protected interest and may not weigh the individual hardship to the departing employee.

That is the framework the business owner above ran into. A twenty-four-month, single-county restraint tied to real customer relationships is not presumptively unreasonable, and with a genuine protected interest behind it, courts routinely enforce it.

What the CHOICE Act actually changed

In 2025, the Florida Legislature added a second track. The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth Act—the CHOICE Act—created a separate set of rules for high-earning employees, layered on top of § 542.335 rather than replacing it.

Three changes matter most:

Coverage is tied to income. The Act reaches “covered employees” who earn—or are reasonably expected to earn—more than twice the annual mean wage of the Florida county where the employer is based (or, for out-of-state employers, where the employee lives). It targets executives, senior salespeople, and key professionals as opposed to the front-line employees.
It authorizes “garden leave.” An employer can require extended advance notice of departure and keep paying the employee through that period while relieving them of duties.
It strengthens the presumption of enforceability for covered agreements. Where a qualifying covenant is in play, the court is directed to enjoin the departing employee, and the burden falls on the employee to prove—under a heightened standard—that enforcement is improper. That is a meaningfully heavier thumb on the scale than § 542.335 places.

What it did not change

For most Florida employees, nothing changed. The CHOICE Act applies only to covered, high-earning employees under agreements that satisfy its formal requirements. Everyone below the income line—and every agreement that misses the Act’s formalities—still lives under § 542.335.

And § 542.335 still does its job. The reasonableness inquiry survives. The legitimate-business-interest requirement survives. Courts retain, and still use, their authority to narrow or strike covenants that overreach on geography, duration, or scope. The CHOICE Act handed employers a stronger tool for a narrow class of employees. It did not abolish the limits that have governed everyone else for a generation.

Drafting implications for employers

Precision wins non-compete cases. Four variables decide most of them.

Geography. Tie the restricted area to where the business actually competes and where the employee actually worked. A statewide restriction on a regional salesperson invites a court to narrow it.
Duration. Match the term to how long the protected relationship or information stays valuable. Reaching for the maximum is the fastest way to get a covenant trimmed.
Scope of activity. Restrict the specific role and line of business the employee performed as opposed to every conceivable activity. Overbreadth here is the single most common reason clauses get cut down.
Choice of law and venue. Specify Florida law and a Florida forum. For agreements built to use the CHOICE Act’s stronger presumption, get the coverage threshold and every required formality right. A covered agreement that misses a statutory step can drop back to ordinary § 542.335 treatment.

What employees should weigh before signing

Read the three numbers that govern your next move: geography, duration, and scope of activity. Then negotiate the carve-outs that actually protect you. Exclude the clients you brought in. Exclude geographies and market segments you have no intention of touching. If you are a high earner who may fall under the CHOICE Act, study the notice and garden-leave terms and the compensation you are owed during any restricted period. The time to fix a covenant is before you sign it, not after your former employer files for an injunction.

The 2026 enforcement landscape

The CHOICE Act is young, and the case law applying its stronger presumption is still thin.

What is predictable is the procedural posture: enforcement fights start fast, often with a motion for a temporary or preliminary injunction filed within weeks of a departure. Day one of a dispute is not the day you start preparing, it is the day you need a position already in hand. For employers, that means having the agreement, the protected interest, and the evidence of breach organized before counsel walks into court. For departing employees, it means understanding your exposure before you give notice and not after you are served.

How Korkin Law approaches restrictive covenants

Restrictive covenants are won or lost long before anyone files suit—how the agreement is drafted, and in the advice taken before it is signed. We work all three phases: drafting covenants that hold up because they are tailored rather than blindly aggressive; advising employees and executives on what an agreement actually permits before they commit; and litigating enforcement and defense when a dispute lands. If you are negotiating, signing, or enforcing a non-compete in Florida, the most valuable hour is the one spent early.

This article is for general educational purposes only and is not legal advice. Reading it does not create an attorney-client relationship, and you should not act on it without consulting a licensed attorney about your specific situation. The law changes, and outcomes turn on the facts.

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