A non-compete agreement is a contract that restricts an employee from working for a competitor, starting a competing business, or soliciting an employer’s clients for a set period after leaving a job. Under Florida Statutes Section 542.335, these agreements are enforceable when they protect a legitimate business interest and contain reasonable restrictions on time, geography, and scope.
At BT Law Group, Miami non-compete agreement lawyers Jason D. Berkowitz and Anisley Tarragona represent both employees and employers in non-compete disputes throughout Florida. Whether you need help understanding a non-compete you signed, enforcing an agreement against a former employee, or defending against an injunction, our team provides guidance based on decades of combined experience in employment law.
This guide explains how non-compete law works in this state, what makes a non-compete enforceable, how long restrictions can last, what happens when someone violates a non-compete, and how the new Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act may change your rights. Call BT Law Group at (305) 507-8506 to discuss your situation with an experienced employment agreement attorney.
What Makes a Non-Compete Agreement Enforceable in Florida?
Florida Statutes Section 542.335 sets out the requirements for a valid non-compete agreement. The agreement must be in writing and signed by the person it restricts. The employer must prove that the restriction protects at least one legitimate business interest.
Legitimate business interests recognized under the statute include trade secrets, confidential business information, substantial relationships with existing or prospective customers, customer goodwill associated with a trade name or service mark, and specialized training provided to the employee. If the employer cannot show a legitimate business interest, the agreement is void and unenforceable.
What Restrictions Must Be Reasonable?
Courts evaluate whether the non-compete’s restrictions on time, geographic area, and business activity are reasonable. A restriction that covers too broad a geographic area or lasts too long relative to the business interest it protects may be modified or struck down by a court. However, Florida law allows courts to modify overbroad restrictions rather than void the entire agreement, which makes the state particularly employer-friendly in this area.
Key Takeaway: A non-compete agreement in Florida must be in writing, signed by the restricted party, and supported by a legitimate business interest such as trade secrets or customer relationships. Courts may modify overbroad terms rather than invalidate the entire agreement.
How Long Can a Non-Compete Agreement Be Enforced in Florida?
The duration of a non-compete is one of the most contested issues in enforcement disputes. Florida Statutes Section 542.335 creates presumptions that help courts evaluate whether a time restriction is reasonable.
For restrictions against former employees, agents, or independent contractors, any restriction lasting six months or less is presumed reasonable. Any restriction exceeding two years is presumed unreasonable. Restrictions between six months and two years carry no presumption either way, leaving it to the court to decide based on the facts.
Does the Type of Business Interest Affect Duration?
Yes. If the non-compete is based solely on protecting trade secrets, the restriction may be considered reasonable for up to 5 years. A trade secret restriction exceeding ten years is presumed unreasonable. These longer periods reflect the lasting value and sensitivity of proprietary business information.
However, these presumptions can be rebutted in Avalon Legal Info. Servs., Inc. v. Keating, 110 So. 3d 75 (Fla. 5th District Court of Appeal (DCA) 2013), a court found a three-year restriction reasonable to protect a former employer’s interest in contract renewals, despite the general presumption against restrictions exceeding two years.
The following table summarizes the duration presumptions under current law:
| Type of Restriction | Presumed Reasonable | No Presumption | Presumed Unreasonable |
|---|---|---|---|
| Former employee, agent, or independent contractor | 6 months or less | 6 months to 2 years | More than 2 years |
| Former distributor, dealer, franchisee, or licensee | 1 year or less | 1 year to 3 years | More than 3 years |
| Trade secret protection only | 5 years or less | 5 years to 10 years | More than 10 years |
| CHOICE Act covered non-compete | Up to 4 years | N/A | More than 4 years |
The CHOICE Act is a separate statutory framework, not part of section 542.335’s rebuttable presumption table. A covered noncompete agreement under the CHOICE Act may last no more than 4 years.
Key Takeaway: Non-compete restrictions of six months or less are presumed reasonable in Florida, while restrictions of over two years are presumed unreasonable. Trade secret protections may justify longer periods. Courts evaluate the specific facts of each case.
Anisley Tarragona of BT Law Group can evaluate whether your non-compete’s duration is likely enforceable under current law.
How Does the Florida CHOICE Act Change Non-Compete Enforcement?
The Florida CHOICE Act took effect on July 1, 2025, and created a new framework for enforcing non-compete agreements alongside the existing rules under Section 542.335. The CHOICE Act applies only to “covered employees,” defined as employees or individual contractors who earn or are reasonably expected to earn a salary greater than twice the annual mean wage of the relevant county, usually the county where the employer’s principal place of business is located, or the employee’s county of residence if the employer’s principal place of business is outside Florida.
Under the CHOICE Act, covered non-compete agreements may restrict employment for up to four years and may last up to four years and must define the geographic area covered by the restriction. The burden of proof shifts from the employer to the employee. Instead of the employer proving the agreement is reasonable, the employee must demonstrate that the agreement is unenforceable.
What Requirements Must Employers Meet Under the CHOICE Act?
To qualify under the CHOICE Act, the employee must be advised in writing of the right to seek counsel before signing, the employer must provide the proposed agreement at least 7 days before the offer expires, the employee must acknowledge in writing that the employee will receive confidential information or customer relationships, and the agreement must reduce the noncompete period day-for-day by any nonworking portion of a covered garden leave notice period, if applicable.
Non-compete agreements that do not meet the CHOICE Act criteria remain governed by Florida Statutes Section 542.335. The CHOICE Act does not apply to non-solicitation or non-disclosure agreements standing alone.
Key Takeaway: The CHOICE Act allows non-compete restrictions of up to four years for high-earning employees and shifts the burden of proof to the employee. Employers must meet specific notice and disclosure requirements to qualify for these enhanced protections.
Employment Contract Attorneys in Miami – BT Law Group
Jason D. Berkowitz, Esq.
Jason D. Berkowitz is a founding partner of BT Law Group. He earned his J.D., cum laude, from the University of Miami School of Law in 2008 and his B.A. from Tufts University in 2003. Before launching the firm, he served as a partner at a national labor and employment law firm representing management exclusively, including Fortune 100 companies.
Mr. Berkowitz is admitted to practice in the U.S. District Courts for the Southern, Middle, and Northern Districts and the U.S. Court of Appeals for the Eleventh Circuit. His practice focuses on discrimination, harassment, wrongful termination, wage and hour disputes, restrictive covenants and trade secrets, and breach of contract.
Anisley Tarragona, Esq.
Anisley Tarragona is a founding partner of BT Law Group. She earned her J.D. from the University of Miami School of Law in 2007 and her B.S.B.A. from the University of Central Florida in 2004. Before co-founding the firm, she practiced at a national labor and employment law firm representing management exclusively, giving her unique insight into how employers approach workplace disputes.
Ms. Tarragona is admitted to practice in the U.S. District Courts for the Southern, Middle, and Northern Districts and the U.S. Court of Appeals for the Eleventh Circuit. Fluent in Spanish, she frequently advises Spanish-speaking clients throughout the region.
What Happens If an Employee Violates a Non-Compete Agreement?
When an employee breaches a legally enforceable non-compete agreement, the former employer may file a lawsuit in the Miami-Dade County Circuit Court at 73 West Flagler Street or in the applicable federal court. The employer typically seeks two forms of relief: an injunction to stop the employee’s competitive activity and monetary damages resulting from the breach.
Florida courts may issue a temporary injunction if the employer demonstrates that it is likely to succeed on the merits, that it will suffer irreparable harm without the injunction, and that the balance of equities favors enforcement. Under the CHOICE Act, a court must preliminarily enjoin a covered employee, and may also enjoin the new business or employer, unless the party opposing relief proves one of the statutory grounds for modifying or dissolving the injunction by clear and convincing evidence.
What Damages Can an Employer Recover?
An employer may seek to recover actual damages caused by the employee’s breach. These damages might include lost revenue, the cost of acquiring replacement clients, and profits diverted to a competitor. The non-compete agreement itself may also specify remedies, such as liquidated damages or an obligation to pay the employer’s attorney’s fees and court costs.
Under section 542.335, a court may award attorney’s fees and costs to the prevailing party if the contract does not already address fees. Under the CHOICE Act, the prevailing party is entitled to reasonable attorney’s fees and costs.
Key Takeaway: Violating a non-compete in Florida can result in a court injunction halting your employment, monetary damages, and responsibility for the former employer’s legal costs. The CHOICE Act makes injunctions even easier for employers to obtain against high-earning employees.
How Would a New Employer Learn About an Employee’s Non-Compete?
Many employers in Miami ask job candidates during the hiring process whether they are bound by a non-compete agreement. This question may appear in an application, come up during an interview, or be included in an offer letter.
Employers ask because hiring someone who is subject to a non-compete can create legal exposure. If the former employer discovers the violation, the new employer may face a claim for tortious interference with a business relationship. This can result in high legal costs and potential liability even though the new employer did not sign the original non-compete agreement.
Some employers include a provision in their offer letters stating that if an employee fails to disclose a prior non-compete and the company later receives a cease and desist letter, the employee may be terminated. Workers in industries where non-competes are common, such as finance, technology, insurance, and pharmaceutical companies operating in the Brickell financial district and throughout Miami-Dade County, should be prepared to discuss any existing restrictions during the hiring process.
Key Takeaway: New employers routinely ask about prior non-competes during hiring. Failing to disclose a non-compete agreement can lead to termination if the prior employer takes legal action. Transparency with a prospective employer protects both parties.
Are Non-Compete Agreements Limited to Certain Industries in Florida?
Non-compete agreements are not limited to any single industry or job type under Florida law. However, they are far more common in industries where employees have access to trade secrets, proprietary business strategies, or significant customer relationships.
Industries where non-competes are especially prevalent include technology and software development, banking and financial services in the Brickell corridor, healthcare and pharmaceutical companies, advertising and marketing agencies, real estate brokerages, and insurance firms. Employees in sales, executive leadership, research and development, and any role with access to confidential client lists or business plans are the most likely to encounter non-compete requirements.
Are Any Professions Exempt From Non-Competes in Florida?
Florida law restricts or prohibits non-compete agreements for certain professions. Attorneys generally cannot be bound by non-compete agreements under the Florida Rules of Professional Conduct. Physicians are not categorically exempt from Florida non-competes, but section 542.336 makes certain physician restrictive covenants void when one entity controls all physicians in a specialty within a county.
The CHOICE Act explicitly excludes licensed healthcare professionals from its scope. Non-competes with healthcare workers remain governed by Florida Statutes Section 542.335.
Key Takeaway: Non-competes apply across industries in Florida, but they are most common in sectors with trade secrets and client relationships. Attorneys and healthcare professionals face special rules or exemptions.
Can a Client’s Dissatisfaction Excuse a Violation of a Non-Solicitation Agreement?
No. Even when a former employer’s clients voluntarily leave to follow a departing employee, the employee may still be found in violation of a non-compete or non-solicitation agreement.
In AmeriGas Propane, Inc. v. Sanchez, 335 So. 3d 1253 (Fla. 3d DCA 2021), a former employee went to work for a competitor, and several of the former employer’s clients followed him. The employee argued that he had not actively solicited anyone and that the clients switched because they were dissatisfied with the former employer’s services. The Florida Third District Court of Appeal disagreed.
The court found that the employee had directly or indirectly solicited clients by visiting them and inviting them to contact him with any issues. The court held that the clients’ stated dissatisfaction with the former employer was irrelevant to whether the employee breached the non-solicitation agreement.
Key Takeaway: Client dissatisfaction does not create a defense to non-solicitation restrictions. Any contact with former clients, even passive or indirect, can be considered solicitation under Florida law.
Can an Employer’s Breach of Contract Void a Non-Compete?
In some circumstances, yes. If an employer materially breaches the employment agreement, such as failing to pay all wages, commissions, or bonuses owed upon termination, the non-compete restrictions within that same agreement may become unenforceable.
Florida courts have recognized that an employer’s material breach of a contract may prevent the employer from obtaining a temporary injunction to enforce the non-compete. For example, if an employment agreement requires the employer to pay a lump sum of all outstanding wages upon termination and the employer fails to do so, a court may find that the employer cannot enforce the non-compete provisions in the same agreement.
Does an Independent Clause Affect This Defense?
The answer may depend on whether the non-compete includes language establishing it as an independent clause. If the agreement states that the restrictive covenant survives independently of the other terms, an employer’s breach of wage obligations might not automatically void the non-compete. Courts examine the specific language of each agreement when evaluating this defense.
Workers who believe their employer failed to honor the terms of an employment agreement should preserve all documentation of the breach, including pay stubs, termination letters, and correspondence regarding unpaid compensation.
Key Takeaway: An employer’s failure to pay all wages owed upon termination may weaken or void a non-compete in the same employment agreement. Whether this defense succeeds depends on the specific contract language and the nature of the breach.
What Should You Do Before Signing a Non-Compete Agreement in Florida?
Signing a non-compete agreement can have lasting consequences on your career. Before signing, take time to understand exactly what the agreement restricts and how long those restrictions last.
Review the agreement carefully for the scope of restricted activities, the geographic area, and the duration. Determine whether the restrictions are limited to your specific role or broadly cover any competitive employment in your industry. Ask whether the employer is willing to negotiate narrower terms, particularly regarding the geographic scope or the length of the restriction.
When Should You Consult an Attorney?
Consulting an employment attorney before signing a non-compete is the most reliable way to protect your interests. An attorney can identify provisions that may be overbroad, advise whether the restrictions are likely enforceable under Florida Statutes Section 542.335 or the CHOICE Act, and help negotiate more favorable terms.
Key Takeaway: Review every non-compete agreement carefully before signing. An employment attorney can identify overbroad provisions and negotiate better terms. Non-compete disputes are resolved in Florida courts, not through the EEOC.
Get Help from a Miami Employment Contract Attorney
Non-compete agreements affect your ability to earn a living, change jobs, and start a business. Whether you are an employee trying to understand the restrictions you agreed to or an employer looking to protect your business from unfair competition, getting the terms right matters.
Jason D. Berkowitz and Anisley Tarragona of BT Law Group have spent their careers handling employment disputes in Miami. Both attorneys previously represented employers at a national management-side firm, which gives them direct insight into how companies approach non-compete enforcement. Our team reviews non-compete agreements, negotiates terms, sends cease and desist letters, files lawsuits, seeks injunctions, and defends employees against enforcement actions. Call BT Law Group at (305) 507-8506 to schedule a consultation.
