The Sunshine State Joins Kansas in Introducing Employer-Friendly Restrictive Covenant Legislation

We recently reported that Kansas was in a minority of states to enact employer-friendly restrictive covenant legislation.

Florida is on the verge of joining Kansas following the introduction of House Bill 1219 (“HB 1219”), which creates, in part, the “Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act”. If enacted, HB 1219 will provide a framework for the use of permissible noncompete and garden leave agreements between a covered employer and covered employee. If passed, the bill would strengthen the enforceability of noncompete and/or garden leave agreements.

HB 1219 outlines certain noncompete and garden leave agreement requirements, such as confidentiality access and notice periods, to accept such agreements as enforceable. So long as the requirements are met, noncompete and garden leave agreements will not be considered a restraint of trade or an attempt to monopolize trade or commerce in violation of public policy. On April 23, 2025, the House voted 91-21 to pass HB 1219, and a day later, the Senate voted 28-9 to pass BH 1219. As of April 24, 2025, the bill was ordered and enrolled.

Covered Employees and Covered Employers

HB 1219 defines “covered employee” as an employee or individual contractor who earns or is expected to earn a salary greater than twice the annual mean wage of the Florida county where the employer maintains its principal place of business, or the Florida county where the employee resides, if the employer’s principal place of business is not located within the state. Of importance, healthcare practitioners—defined under § 456.001—are excluded from this definition. A “covered employer” is any employer who employs or engages with a “covered employee.”

Covered Noncompete Agreements

Under HB 1219, a “covered noncompete agreement” is a written agreement between a covered employee and covered employer for a period of no more than four years within the “geographic area defined in the agreement” in which the covered employee agrees not to engage in employment with another employer to (1) provide services like the services provided to the covered employer during the three years prior to the noncompete period, or (2) is reasonably likely to use the covered employer’s confidential information or customer relationships.

The bill further states that a noncompete agreement is “fully enforceable according to its terms,” so long as it is meets the following requirements:

• The covered employee was advised in writing that the covered employee had a right to seek counsel before executing the noncompete agreement;
• The covered employee acknowledges in writing that during their employment they would be privy to confidential information or customer relationships; and
• The noncompete agreement provides that the noncompete period—defined as the employee’s termination of employment through an agreed-upon noncompetition period—is reduced each day the employee is not working pursuant to a “covered garden leave agreement” (discussed in more detail below).

In addition to the above requirements, a covered employer must provide the noncompete agreement to a prospective covered employee at least seven days before an offer of employment expires, or to a current covered employee at least seven days before the offer to enter into the noncompete agreement expires.

Garden Leave Agreements

HB 1219 defines as “covered garden leave agreement” as a written agreement between a covered employee and covered employer, where the parties agree to a period of up to, but no more than, four years of advanced, express notice before terminating the employment or contractor relationship. Additionally, the covered employee agrees not to resign before the end of the notice period—defined as the date of written notice of intent to terminate through the date of termination pursuant to the garden leave agreement—and the covered employer agrees to retain the covered employee for the duration of the notice period. A “covered garden leave agreement” is only enforceable if:

• The covered employee was advised in writing that the covered employee had a right to seek counsel before executing the garden leave agreement;
• The covered employee acknowledges in writing they were privy to confidential information or customer relationships; and
• The agreement provides:
  • After ninety days, the covered employee no longer needs to provide services to the covered employer;
  • The covered employee may engage in non-work activities during the notice period;
  • The covered employee may work for another employer during the notice period, so long as the covered employer agrees to such term; and
  • The covered employer can reduce the notice period so long as the covered employer provides thirty days’ notice in writing to the covered employee.

In addition to the above requirements, garden leave agreements are subject to the same notice requirements as covered noncompete agreements, described above.

Should a party breach a covered noncompete agreement or covered garden leave agreement, HB 1219 sets forth available remedies, such as injunctive relief.

Takeaways

States continue to introduce and enact legislation aimed at restrictive covenant enforceability. States like Arkansas, New York, and Texas recently introduced legislation to limit the enforceability of noncompete agreements. And while Florida seeks to permit the enforceability of noncompete agreements and garden leave agreements, HB 1219’s introduction only reinforces that state legislatures are looking to enact their own laws on the issue. Therefore, it is important that employers keep up to date with the ever-changing restrictive covenant landscape.

Gianna Dano, a Law Clerk in Epstein Becker & Green’s Newark Office (not admitted to practice), contributed to the preparation of this piece.