Florida’s New CHOICE Act Seeks to Enhance Enforcement of Non-Competes

In the recently enacted Contracts Honoring Opportunity, Investment, Confidentiality and Economic Growth Act (the “CHOICE Act”), Florida – which was already an employer-friendly state – inaugurated an even more pro-employer framework governing non-compete agreements for covered workers.

The CHOICE Act’s provisions apply to companies based in Florida, regardless of where the worker resides, if the non-compete agreement complies with the other requirements and “is expressly governed by the laws” of Florida (see Florida Statutes (Fla.) Section 542.45(1)(b)). The new Act, which took effect in July 2025, also applies to workers with their principal place of work in Florida, even if they work for a non-Florida company and even if their non-compete specifies that it is governed by the laws of another state (Id at Section 542.45(1)(a)).

Under Florida’s prior non-compete statute, which remains in effect for workers not covered by the CHOICE Act, an employer must prove that the contractual constraint is reasonably necessary to protect the employer’s legitimate business interests, including demonstrating that it is reasonable in duration and geographic scope (Id at Section 542.335 (1)(c)). Restrictive covenants lasting more than two years are presumed unreasonable (Id at Section 542.335 (1)(d)1). The CHOICE Act eliminates the requirement to prove that the constraint furthers a legitimate business interest, eliminates the geographic restriction, and caps non-compete agreements at a duration of four years (Id at Section 542.43(6)).

Effectively flipping the typical burden of proof, the CHOICE Act requires courts to issue preliminary injunctions to enforce a covered agreement unless the employee demonstrates by clear and convincing evidence that the agreement is unenforceable or unnecessary to prevent unfair competition (Id at Section 542.45(5)(a)).

While the CHOICE Act is designed to greatly increase protection for employers, the Act does include certain protections for workers. The Act requires that the employee “was advised in writing of the right to seek counsel before execution of the covered non-compete agreement”, and was given a week to review the proposed agreement and acknowledged in writing receipt of “confidential information or customer relationships” (Id at Section 542.45(2)(a)–(b) and 542.45(3)(a)).

The Act also exempts low-paid workers. It applies to “covered workers”, defined as workers earning more than twice the mean wage in the Florida county where the employer has its principal place of business and, if the employer is out-of-state, twice the annual mean wage of the Florida county where the worker resides (Id at Section 542.43(3)). The new act is intended to encourage companies to invest in Florida (Id at Section 542.42 – “[t]he Legislature further finds that predictability in the enforcement of contracts described in this part encourages investment in this state”).

The CHOICE Act also creates covered “garden leave” agreements. Under such agreements, employees remain on an employer’s payroll for up to four years after giving notice of their resignation (Id at Section 542.43(5)). During the garden leave, employees often perform little to no work but are prevented from providing services to competitors, thereby allowing employers to protect their business interests by preventing an employee from competing.

As the CHOICE ACT is so new, courts have not yet had occasion to construe it. Given the sharp difference between Florida law and the law in more worker-friendly states, the Act will inevitably spawn a slew of conflicts about its enforcement. Certain likely conflicts are considered below.

Enforcing The CHOICE Act in Florida Against Workers in an Employer-Friendly State

A growing number of states – California, Minnesota, North Dakota and Oklahoma, as well as the District of Columbia – block non-competes completely unless tied to the sale of a business or in similar circumstances.

Given how pro-employer Florida non-compete law is, Florida companies are likely to draft non-compete agreements providing for venue in Florida and application of Florida law. Workers being sued in Florida under the CHOICE Act can challenge the venue or choice-of-law provisions, but doing so successfully will be difficult given the deference provided to such contractual provisions (especially venue clauses).

Where the forum selection clause is the fruit of an arm’s length negotiation, the party challenging the clause bears an especially “heavy burden of proof” to avoid its bargain (see Bremen v Zapata Off-Shore Co, 407 US 1, 17 (1972)). Only “some compelling and countervailing reason” will excuse enforcement (Id at 12; see Carnival Cruise Lines, Inc v Shute, 499 US 585, 593–94 (1991)). A contractual choice-of-forum clause is enforceable unless “enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision”. See Bremen, 407 US at 15; Atlantic Marine Construction Co, Inc v US District Court for Western District of Texas (2013) 571 US 49, 63 (2013) – “a valid forum-selection clause [should be] given controlling weight in all but the most exceptional cases”.

A court sitting in Florida will look to Florida’s public policy in deciding whether a forum selection provision violates public policy. See Mazzoni Farms, Inc v EI Dupont de Nemours & Co, 761 So 2d 306, 311–12 (Fla. 2000). As Florida policy favours enforcement of venue provisions and non-compete agreements, Florida courts will likely not override a forum selection clause unless that clause was obtained through fraud, or in some other exceptional circumstance. See Manrique v Fabbri, 493 So 2d 437, 440 (Fla. 1986); Holder v Burger King Corp, 576 So 2d 973, 974 (Fla. 2d DCA 1991).

Courts also give deference to contractual choice-of-law clauses. In federal court, choice-of-law issues in diversity actions – which are how most non-competes reach federal court – depend on the rules of the forum state. Under Florida law, contractual choice-of-law provisions are presumptively enforceable unless the law of the chosen forum contravenes strong public policy. See Interface Kanner, LLC v JPMorgan Chase Bank, NA, 704 F 3d 927, 932 (11th Cir 2013); Mazzoni Farms, Inc, 761 So 2d at 312 – “[a]lthough courts have adopted varied formulations, the underlying principle remains the same: the countervailing public policy must be sufficiently important that it outweighs the policy protecting freedom of contract”.

In the absence of unusual facts, a Florida court is not likely to find that application of a Florida law to a non-compete agreement involving a company based in Florida violates the policy of Florida. See Fla. Section 671.105(1) (2025); see also Comment f to Section 187 of Restatement (Second) of Conflict of Laws (the law of the state selected in the contract has a substantial relationship to the parties or the contract where the selected state is the principal place of business for one of the parties).

An out-of-state worker who is a defendant in a breach of a non-compete action can also raise a personal jurisdiction challenge, but, if the worker voluntarily agreed to a provision establishing venue in Florida, that will likely dispose of any personal jurisdiction challenge. See Office Depot, Inc v Pelletier, 2016 WL 10932510, at *4 No 1 (SD Fla., 8 Sept 2016); Alexander Proudfoot Co World Headquarters LP v Thayer, 877 F 2d 912, 921 No 20 (11th Cir 1989).

Workers have raised another argument in some analogous cases seeking to limit the scope of injunctive relief, contending that the forum court should not apply its own law to an out-of-state worker on comity and federalism grounds where the law of the forum state conflicts with the law of the state where the injunction would operate. The 11th Circuit’s decision in Keener v Convergys Corp, 342 F 3d 1264 (11th Cir 2003) is instructive. There, the district court, applying Georgia law, enjoined enforcement of a restrictive covenant nationwide (Id at 1266).

The 11th Circuit affirmed application of Georgia law, notwithstanding a choice-of-law provision calling for the application of Ohio law: “[b]ecause Georgia public policy is offended by the [non-compete agreement]. Georgia law applies to render the [restrictive covenant] unenforceable” (Id at 1271).

Though it affirmed application of Georgia law, the court held “that the district court abused its discretion because it did not tailor the injunction to include Georgia only” (Id at 1269). It explained that, while “Georgia of course is entitled to enforce its public policy interests within its boundaries”, it “cannot in effect apply its public policy decisions nationwide – the public policy of Georgia is not that everywhere” (Id).

Thus, under Keener, federal courts should not issue a broad injunction enjoining an out-of-state employee from working in states such as California, where non-competes are unenforceable as against public policy (Id); see also Advanced Marketing Int’l, Inc v Ferguson, 2006 WL 1679417, *3 (MD Fla., 14 June 2006) (dictum) (“interests of federal comity” prevent a Florida court from enforcing a restrictive covenant against a California resident, even with a Florida choice-of-law and venue selection provision). This limitation on the permissible scope of injunctive relief could become particularly important because the CHOICE Act eliminated any geographic limitation on covered agreements.

As noted, the CHOICE Act contains a rebuttable presumption requiring issuance of a preliminary injunction (see Fla. Section 542.45(5)(a)). The general Florida law on non-competes also creates a presumption, stating that “violation of an enforceable restrictive covenant creates a presumption of irreparable injury” (Id at 542.335(1)(j)). Such a presumption raises a “knotty question” – whether a federal court considering a preliminary injunction motion in a diversity case must apply the state law presumption or follow federal equity practice. See Vital Pharm, Inc v Alfieri, 23 F 4th 1282, 1292 (11th Cir 2022).

In an unpublished decision that does not constitute binding precedent, the Court of Appeals for the 11th Circuit found that presumption of irreparable harm did not violate the traditional approach for deciding on injunctive relief under federal equity practice and the Federal Rule of Civil Procedure 65. See TransUnion Risk & Alt Data Sols, Inc v MacLachlan, 625 F App’x 403, 406 (11th Cir 2015) (per curiam).

However, one 11th Circuit judge disagreed in a subsequent concurrence, Vital Pharm, Inc, 23 F 4th at 1293 (Pryor, chief judge, concurring), and so did a district court judge in Blue-Grace Logistics LLC v Fahey, 340 FRD 460, 466 (MD Fla. 2022). Thus, whether such a presumption may apply in federal court has not been definitively decided.

Enforcing the CHOICE Act Against a Pre-Emptive Lawsuit by Workers in an Employee-Friendly State

Sometimes, the clash over enforcement of Florida’s CHOICE Act takes place in courts of an employer-friendly state (such as California), when a worker who is planning on taking a job for a competitor files a pre-emptive action, or a responsive action, seeking a judgment that the non-compete is unenforceable as against the public policy of the forum state.

Such cases have at times been successful. See, for example, Freeman Expositions, Inc v Global Experience Specialists, Inc, 2017 WL 1488269, at *4 (CD Cal, 24 April 2017) – “[e]nforcing the forum selection clause would contravene California’s strong public policy against non-compete agreements”.

See also:

• Jacam Chemical Company 2013, LLC v Shepard, 2023 WL 22139, at *2 (DND, 3 January 2023) – “[t]o enforce the Kansas forum selection in this case clause would clearly violate North Dakota’s strong public policy against non-compete agreements”;
• Osborne v Brown & Saenger, Inc, 904 NW 2d 34, 38–39 (SD 2017) – refusing to enforce a choice-of-law provision and stating “[s]imply put, one may not contract for application of another state’s law or forum if the natural result is to allow enforcement of a non-compete agreement in violation of North Dakota’s long-standing and strong public policy against non-compete agreements”; and
• Lapolla Industries, Inc v Hess, 750 SE 2d 467, 476 (Ga Ct App 2013) – affirming the decision to not enforce contractual forum selection and choice-of-law clauses that would have likely resulted in enforcement of the covenant not to compete in violation of Georgia law.

However, a long line of California cases say that a venue provision, if freely negotiated, does not violate the public policy of California, even if it is part of a non-compete. The decision in Mechanix Wear, Inc v Performance Fabrics, Inc, 2017 WL 417193 (CD Cal, 31 January 2017) is exemplary. There, the court stated the plaintiffs’ argument that a “forum selection clause is unreasonable because it arises in a non-compete agreement, and California has a strong public policy against non-compete agreements... [and] fails because the only relevant consideration is whether the forum clause selection clause itself violates California’s public policy, not the agreement in which it appears” (Id at *7).

Numerous cases have reached a similar conclusion. See, for instance:

• Dexcom, Inc v Medtronic, Inc, 2021 WL 5908930, at *3  (SD Cal, 14 December 2021) – “[p]laintiffs’ argument, however, relates to California’s public policies surrounding non-compete and choice-of-law provisions, not public policy against the enforcement of forum-selection clauses”;
• Thermomagnetics & Cryogens, Inc v Pittsburgh Universal, LLC, 2016 WL 11002591, at *4 (CD Cal, 19 December 2016) – “[w]hile California has a policy against restrictive covenants against competition, this Court is not aware of any general policy of non-enforcement of forum-selection clauses”;
• Future Foam, Inc v FXI, Inc, 2016 WL 11752908, at *7 (CD Cal, 5 April 2016) – “[t]he Eastern District of Pennsylvania is capable of vindicating any claims arising under California law because, despite the existence of a choice-of-law provision, the transferee court may apply California law if it determines that such application is appropriate”; and
• In re AutoNation, Inc, 228 SW 3d 663, 670 (Tex 2007) – “we will not presume to tell the 49 other states that they cannot hear a non-compete case involving a Texas resident-employee and decide what law applies, particularly where the parties voluntarily agree to litigate enforceability disputes there and not here”.

Furthermore, if the venue provision is upheld, the court should send the case to Florida without reaching choice-of-law and enforceability issues.

Build Group, Inc v NR Windows, Inc, 2022 WL 3697355, at *1(CD Cal, 17 February 2022), is instructive.  That case arose from a dispute between two Florida companies, their ex-employee and his new employer, two California companies. While still employed in Florida, the employee entered into a non-compete with a Florida choice-of-law provision and venue in the state court in Florida. After the ex-employee began working for a competitor in California, the two Florida companies sued him in a Florida court for breach of his duty of loyalty. In response, the new employer brought a multi-count action in California against the two Florida companies. The defendants invoked the forum selection clause and moved to dismiss.

The court first held that the plaintiffs were bound by the forum selection clause even though they were not signatories, because their claims were intertwined with the non-compete agreement. Then, the court found that the forum selection clause did not violate California public policy because “the only relevant consideration is whether the forum [...] selection clause itself violates California public policy, not the agreement in which it appears” (Id at *4). The court thus dismissed the California action, allowing the Florida action to proceed.

In reaching its decision, the Build Group, Inc court rejected the defendants’ invocation of the California Labor Code Section 925, which limits employers’ ability to require employees who reside and work primarily in California to litigate outside California a claim that arose in California. The court held that the provision did not apply because it was limited to employees who signed contracts with forum selection clauses while residing and working in California, and the ex-employee did not fit that bill (Id at *5).

However, since that decision was issued, the California legislature enacted a new statute, the California Business and Professions Code Section 16600.5 (2024), which states that any non-compete contract that is void under California law “is unenforceable regardless of where and when the contract was signed”. That provision was intended to help California companies hire out-of-state workers because “as the market for talent has become national and remote work has grown, California employers increasingly face the challenge of employers outside of California attempting to prevent the hiring of former employees”. There is not yet a definitive ruling on the scope of that new provision or on how it would operate in tandem with the California Labor Code Section 925.

Even if such a case were to remain in California, there would be a dispute about whether California law should apply. In recent years, courts have been less inclined to overturn choice-of-law provisions because they have placed increased weight on the policy choices of states that permit enforcement of non-compete agreements.

DraftKings Inc v Hermalyn, 118 F 4th 416, 423 (1st Cir 2024) is a case in point. That case concerned a New Jersey resident who worked for Massachusetts-headquartered DraftKings. He quit to take a similar job with a California rival. DraftKings sued its ex-employee in federal court in Massachusetts for breach of a non-compete.

The dispositive issue was which law applied. The trial court held that Massachusetts law (the contractually specified law) governed, but the First Circuit reversed, determining that the case before it involved “two states passing laws reflecting different but careful balances of conflicting forces in the non-compete area” (Id at 422–23). In light of the Massachusetts statute, the court upheld the injunction because the ex-employee failed to show that California’s interest in pursuing its policy was “materially” greater than Massachusetts’ interest (Id).

A number of other courts have also found that the interest of the state where a worker resided was not materially greater than the interest of the state where the employer was based. See, for instance:

• Down-Lite Int’l, Inc v Altbaier, 821 F App’x 553, 556 (6th Cir 2020) – stating “California has a meaningful interest in protecting its resident from” his Ohio-based former employer’s “desire to restrict competitive conduct”, but holding that “that interest is not materially greater than Ohio’s interest in protecting one of its closely held businesses operating in the global economy”; and
• McGriff Insurance Services, LLC v Wilson, 2025 BL 7971, at *4 (MDNC, 10 January 2025) – applying the law of the employer’s state, North Carolina, not the law of the state where the employee was based, Georgia, because North Carolina “has an interest in protecting its companies from breaches of employment agreements” and it could not say that Georgia’ interest was materially greater.

Litigating CHOICE Act Claims for Florida Workers Employed by Non-Florida Companies

In a novel twist, Florida’s CHOICE Act also purports to apply to all covered workers with their principal place of work in Florida, regardless of where their employer is based and “regardless of any applicable choice-of-law provisions” (Fla. 542.45 (1)(a)).

If such workers signed a non-compete agreement with a valid venue provision, that provision will likely be enforced “in all but the most exceptional cases”. See Atlantic Marine Construction Co, Inc, 571 US at 63. The court will also have to determine whether, in the case of a conflict with the laws of another state, Florida law will govern, as the Act requires. Where the employer is not based in Florida, a court is likely to find that Florida’s interests are attenuated. However, Florida has an economic interest in encouraging companies not based in Florida to expand operations in Florida, and the Florida legislature has determined that the CHOICE Act would do just that (Fla. Section 542.42). To override the choice of law specified in a non-compete agreement, courts will have to determine whether Florida’s interest is materially greater than the interest of the state whose law is specified in the agreement as governing.

If the company prevails on threshold issues, courts will also have to determine the scope of injunctive relief. Under Keener, federal courts in the 11th Circuit should not enjoin an ex-employee from working in a state where enforcing non-compete agreements is against public policy, because in light of comity and federalism concerns Florida “cannot in effect apply its public policy decisions nationwide – the public policy of [Florida] is not that everywhere” (342 F 3d at 1269).

There is also support for such a limitation outside the 11th Circuit. See, for example:

• Thomas v Wash Gas Light Co, 448 US 261, 272 (1980) – observing that empowering the courts of one state to give that state’s laws and judgments extraterritorial effect “risks the very kind of parochial entrenchment on the interests of other States that it was the purpose of [...] Article IV of the Constitution to prevent”;
• Barnes Group, Inc v C&C Products, Inc, 716 F 2d 1023, 1032 (4th Cir 1983) – “[i]t was [an] error […] for the district court to apply Ohio law to determine the enforceability of the Alabama salesmen’s covenants not to compete” in Alabama because restrictive covenants were against public policy in Alabama, while affirming application of Ohio law to enforceability issues in Maryland and South Carolina; and
• Dresser Industries, Inc v Sandvick, 732 F 2d 783, 788 (10th Cir 1984) – the restrictive covenant could not be enforced under choice-of law-analysis against residents of states with public policies against restrictive covenants.