We are watching the progress of Florida HB 1219 (the CHOICE ACT) which, if signed by the Governor, would guarantee that a properly worded non-compete agreement would be enforced, regardless of the employer's actual need for such protection.

The new legislation would be applicable to employees earning more than twice the mean/average annual wage in the county of the employer's home office or (for employer's with a home office outside of Florida) the county of the employee's residence. The legislation would be applicable to independent contractors, although requiring contractors to sign a non-compete creates other problems. The legislation would not apply to healthcare workers. For comparison, the average annual wage statewide is $66,500.

A court would be required to enter an injunction against the departing employee (and his/her new employer) barring the employee from working for the new employer while the actual need for such an injunction is litigated. The injunction could only be lifted or modified if the employee proves by clear and convincing evidence (a higher than usual burden) that: (1) the previous employer failed to provide whatever was promised in exchange for the non-compete; (2) that the employee will not engage in competitive services or use the former employer's confidential or trade secret information or customer relationships; or (3) that the new employer is not a competitor. The legislation would amend F.S. 542.335 and would allow for a four-year non-compete period - twice the current Florida presumptive limit and twice the nationwide norm.

This legislation was recently forwarded to the Governor who has until July 3, 2025 to take action on it. If he takes no action (i.e., a veto) by July 3, 2025, the legislation automatically becomes law.

Article Written By: Kelly Kolb, Esq. Buchanan Ingersoll & Rooney, PC