Yes, Florida non-competes can be enforceable, but only if they meet specific legal requirements under Florida Statutes § 542.335. Some are not enforceable as written. A non-compete must be in writing, protect a legitimate business interest, and impose restrictions that are reasonably necessary in time, geographic area, and scope. On top of that, a new state law called the CHOICE Act became constitutionally effective on July 1, 2025, creating additional enforceability rules for higher-earning employees.
BT Law Group, PLLC represents employees and employers in non-compete disputes throughout South Florida. Miami employment agreement attorneys Jason D. Berkowitz and Anisley Tarragona can help you understand whether your non-compete agreements are enforceable under Florida law and what options are available to challenge or defend them.
This guide covers the existing enforceability test under § 542.335, the new CHOICE Act’s impact on high-earning employees, the status of the federal FTC non-compete ban, common defenses employees can raise, and what to do if your employer threatens legal action over a non-compete.
Unsure whether your Florida non-compete is enforceable? Don’t wait until your employer takes legal action. Call BT Law Group, PLLC today at (305) 507-8506 to schedule a consultation.
What Makes a Florida Non-Compete Enforceable?
Florida courts apply a three-part test under § 542.335 to determine whether a non-compete agreement is enforceable. All three elements must be present, and the burden falls on the employer to prove them.
The agreement must be:
- Set forth in writing signed by the person against whom enforcement is sought
- Supported by a legitimate business interest recognized under Florida law
- Reasonably necessary in time, geographic area, and line of business to protect that interest
If there is no signed writing or no legitimate business interest, the covenant may be unenforceable. If the restriction is overbroad, overlong, or not reasonably necessary, a Florida court may narrow the restriction rather than voiding the agreement entirely.
What Is a “Legitimate Business Interest” in Florida?
Section 542.335(1)(b) lists five categories of legitimate business interests that can support a non-compete:
- Trade secrets as defined under Florida Statutes § 688.002(4)
- Valuable confidential business or professional information that does not qualify as a trade secret
- Substantial relationships with specific prospective or existing customers, patients, or clients
- Customer, patient, or client goodwill associated with a trade name, trademark, geographic location, or marketing area
- Extraordinary or specialized training provided by the employer
This list is not exhaustive. Florida courts have recognized other business interests not specifically named in the statute. However, a non-compete that does not protect any legitimate business interest is “unlawful and void and unenforceable” under the statute’s plain language.
What Does “Reasonably Necessary” Mean?
Even when a legitimate business interest exists, the restriction must be proportional to the interest it protects. Courts evaluate whether the time period, geographic scope, and activity limitation are each reasonably necessary, not just whether one of them is.
For example, a two-year restriction covering all of Florida might be reasonable for a senior sales executive with statewide client relationships. The same restriction imposed on a junior employee who served only Miami-area clients could be overbroad. Courts look at the specific facts of each case rather than applying a one-size-fits-all standard.
Key Takeaway: Florida non-competes must satisfy a three-part test: written agreement, legitimate business interest, and reasonable scope. The employer must prove all three elements. If any element is missing, the agreement is unenforceable.
What Are the Rules on Time and Geography?
Section 542.335(1)(d) creates specific presumptions about what counts as a reasonable time restriction. These presumptions depend on the type of restrictive covenant and the relationship between the parties.
| Agreement Type | Presumptively Reasonable | Presumptively Unreasonable |
| Former employee or independent contractor | 6 months or less | More than 2 years |
| Former distributor, dealer, franchisee, or licensee | 1 year or less | More than 3 years |
| Seller of a business or its goodwill | 3 years or less | More than 7 years |
These are rebuttable presumptions, meaning either side can present evidence to overcome them. A 2.5-year restriction on a former employee is not automatically unreasonable, but the employer would bear the burden of proving why it is necessary.
For geographic scope, § 542.335 does not set fixed mileage or area limits. Instead, courts assess whether the geographic restriction is reasonably related to the area where the employee actually performed services or had client contact. A nationwide restriction may be reasonable for a salesperson with national accounts but unreasonable for an employee whose work was limited to Miami-Dade County.
Key Takeaway: Florida law presumes employee non-competes lasting 6 months or less are reasonable and those exceeding 2 years are unreasonable. These presumptions can be rebutted, and geographic restrictions must match the employee’s actual service area.
What Is the Florida CHOICE Act?
The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act became constitutionally effective on July 1, 2025. The Act provides that qualifying covered non-compete and covered garden leave agreements are enforceable if they meet its requirements.
Who Is a “Covered Employee” Under the CHOICE Act?
The Act applies to any “covered employee,” defined as an employee or individual contractor who earns, or is reasonably expected to earn, a salary greater than twice the annual mean wage of:
- The county in Florida where the employer has its principal place of business, or
- If the employer’s principal place of business is not in Florida, the county where the employee resides
This threshold changes as BLS wage data changes, and the covered-employee threshold can vary significantly by county. The definition excludes health care practitioners as defined in Florida Statutes § 456.001.
What Is a Covered Garden Leave Agreement?
A covered garden leave agreement under the CHOICE Act is a written agreement in which:
- The covered employee and covered employer agree to give advance, clear notice before ending the employment or contractor relationship. The notice period may last up to, but not more than, 4 years.
- The covered employee agrees not to quit before the notice period ends.
- The covered employer agrees to keep the covered employee during the notice period.
During the garden leave notice period, the employer does not have to provide discretionary incentive compensation or have the employee continue performing work. The employer must continue paying the same salary and providing the same benefits the covered employee received in the last month before the notice period began.
Does the CHOICE Act Replace Existing Florida Law?
No. The CHOICE Act creates a separate path for non-compete agreements involving covered employees. If an agreement does not meet the Act’s requirements, such as the salary threshold or other required terms, it is still reviewed under § 542.335. The CHOICE Act does not replace § 542.335 for agreements it does not cover, but it controls when a covered agreement conflicts with another law.
This dual-track structure means employers and employees need to understand both laws. An agreement could be enforceable under the CHOICE Act even if it might face challenges under § 542.335, or vice versa.
Key Takeaway: The CHOICE Act creates a separate enforceability framework for qualifying covered non-compete and covered garden leave agreements, involving employees who earn more than twice the county’s mean wage. It does not replace § 542.335; rather, it adds a second legal framework for qualifying agreements.
Did the FTC Ban Non-Competes in Florida?
No. The Federal Trade Commission announced a rule on April 23, 2024, that would have banned most non-compete agreements nationwide. The rule never took effect.
On August 20, 2024, a federal district court issued an order blocking the FTC from enforcing the rule. The FTC appealed that decision on October 18, 2024. On September 5, 2025, the FTC took steps to dismiss its appeal in the Fifth Circuit.
The FTC’s own website now states: “The Noncompete Rule is not in effect and it is not enforceable.” Florida non-competes remain governed by state law, specifically § 542.335 and the CHOICE Act, unless another applicable federal or state law limits enforcement.
If you were told that your non-compete is no longer valid because of a “federal ban,” that information is incorrect. Florida employers can still enforce qualifying non-compete agreements under current state law.
Key Takeaway: The FTC’s nationwide non-compete rule was blocked by a federal court, and the FTC took steps to dismiss its appeal in September 2025. The rule never took effect. Florida non-competes are governed by state law.
Employment Agreement Attorneys in Miami: BT Law Group, PLLC
Jason D. Berkowitz, Esq.
Jason D. Berkowitz 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. He is admitted to practice in Florida, the U.S. District Courts for the Southern, Middle, and Northern Districts of Florida, and the U.S. Court of Appeals for the Eleventh Circuit.
As a founding partner of BT Law Group, PLLC, Jason represents clients in labor and employment matters, including discrimination, harassment, retaliation, wrongful termination, wage-and-hour disputes, misclassification, failure to accommodate, restrictive covenants, trade secrets, breach of contract, and related Florida tort and common-law claims. Before founding BT Law Group, he was a partner in the Miami office of a national labor and employment firm representing management, including Fortune 100 companies. His experience includes litigating and trying cases in federal and state courts, as well as before administrative agencies and arbitration tribunals.
Anisley Tarragona, Esq.
Anisley Tarragona 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. She is admitted to practice in Florida, the U.S. District Courts for the Southern, Middle, and Northern Districts of Florida, and the U.S. Court of Appeals for the Eleventh Circuit.
As a founding partner of BT Law Group, PLLC, Anisley represents employees in workplace disputes involving sexual harassment, wrongful termination, unpaid wages, discrimination, retaliation, misclassification, failure to accommodate, restrictive covenants, trade secrets, breach of contract, and related Florida employment claims. Before founding the firm, she practiced at a national labor and employment law firm representing management, giving her insight into how employers, defense counsel, and insurers evaluate employment disputes. Born and raised in Cuba, she is fluent in Spanish and frequently works with Spanish-speaking clients in employment matters.
When Are Non-Competes Not Enforceable?
A Florida non-compete can be unenforceable for several reasons, even if the employee signed it. Common grounds for unenforceability include:
- No legitimate business interest: The employer cannot identify a protectable interest recognized under § 542.335(1)(b)
- Overbroad restrictions: The time, geographic, or activity restrictions exceed what is reasonably necessary to protect the stated interest
- Consideration issues: Although continued at-will employment is generally treated as sufficient consideration in Florida, unusual facts may still warrant attorney review.
- Unclean hands: The employer engaged in inequitable conduct, such as fraudulently inducing the employee to sign
- Employer breach: The employer materially breached the underlying employment agreement before seeking to enforce the non-compete
Florida courts do not void non-competes lightly. The statute establishes a strong policy favoring the enforcement of properly drafted restrictive covenants. However, these defenses can reduce or eliminate the agreement’s enforceability when supported by the facts.
Can a Florida Court Rewrite Your Non-Compete?
Yes. Under § 542.335(1)(c), Florida courts are required to modify overbroad non-competes rather than void them entirely. This is known as “blue-penciling.”
If a court finds that a non-compete’s time restriction, geographic scope, or activity limitation is overbroad, the court must narrow the restriction to make it reasonable rather than strike the entire agreement. This rule benefits employers because even a poorly drafted non-compete may still be enforced in a modified form.
For employees, this means that arguing a non-compete is “too broad” may not be enough to escape it entirely. The court may reduce the restriction’s scope and enforce the revised version. Understanding this rule is critical before deciding whether to challenge a non-compete in a Miami courtroom or negotiate a resolution outside of court.
What Defenses Can Employees Raise?
Employees facing enforcement of a non-compete in Florida have several potential defenses. The strength of each defense depends on the specific facts of the case.
Common employee defenses include:
- No protectable business interest: The employer’s stated interest does not qualify under § 542.335(1)(b), or the employee did not have actual access to the information or relationships the employer claims to protect
- Changed circumstances: The employee’s role, responsibilities, or access to confidential information changed materially after the agreement was signed, so the original restrictions no longer match the employee’s actual position
- Employer breach: The employer violated the employment agreement first, such as failing to pay agreed compensation or terminating the employee without cause when the agreement required it
- Lack of consideration: The agreement was signed after employment began without any new benefit provided to the employee, though Florida courts have generally held that continued at-will employment is sufficient consideration
- Public interest: Enforcement would harm the public, such as restricting access to a specialized medical provider in an underserved Miami community
Note that § 542.335(1)(g) specifically limits what courts may consider. Courts may not consider the economic hardship the restriction would impose on the employee. Courts also may not consider that the employer no longer employs the person, unless the employer has no remaining legitimate business interest to protect.
Key Takeaway: Florida employees can challenge non-competes on several grounds, including lack of a protectable interest, employer breach, and changed circumstances. However, the statute prohibits courts from considering the personal economic hardship the restriction causes the employee.
Do Non-Competes Apply After a Business Sale?
Yes, and they are treated differently from employee non-competes. When someone sells a business, the non-compete agreement that accompanies the sale is subject to longer presumptive time periods under § 542.335.
For the seller of a business or its goodwill, a restriction of 3 years or less is presumptively reasonable, and a restriction of more than 7 years is presumptively unreasonable. Restrictions between 3 and 7 years fall in a middle range where neither presumption applies, and the court must evaluate reasonableness based on the facts.
Courts recognize that buyers have a strong interest in ensuring the seller does not immediately compete and draw back customers. The goodwill of the business, which the buyer paid for, would be worthless if the seller could open a competing operation the next day.
This distinction matters because employees sometimes transition into ownership roles through buyouts or equity arrangements. Whether a non-compete is classified as an “employee” covenant or a “business sale” covenant can significantly affect how long the restriction is presumed to be reasonable. Miami business owners and entrepreneurs considering a sale or acquisition should understand which framework will apply.
Key Takeaway: Non-competes tied to a business sale allow much longer time restrictions than employee non-competes: up to 3 years is presumptively reasonable, compared to just 6 months for employees. The classification of the agreement directly affects enforceability.
What Should You Do If Your Employer Threatens to Sue?
If your Miami employer has threatened legal action over a non-compete, taking the right steps early can significantly affect the outcome. Here is what you should do:
- Do not sign anything new: Employers sometimes present new or modified agreements during disputes. Do not sign any documents without legal advice.
- Locate your original agreement: Find the exact non-compete you signed. The specific language matters, and if you cannot find it, your employer may have difficulty proving the exact terms.
- Document everything: Secure a copy of any emails, letters, or messages related to the threat. Note dates, times, and who communicated the threat.
- Understand the injunction risk: Florida employers can seek temporary injunctions to enforce non-competes. Under § 542.335(1)(j), an employer who proves a violation of an enforceable non-compete is entitled to a presumption of irreparable injury, making it easier to obtain emergency court orders.
- Consult an employment attorney immediately: Non-compete enforcement moves quickly. Once an employer files for an injunction in a Miami court, you may have only days to respond.
Time is a critical factor. The sooner you get legal advice, the more options you have to negotiate, challenge, or comply strategically with the agreement.
Key Takeaway: If your employer threatens to enforce a non-compete, do not sign new documents, locate your original agreement, and consult an attorney immediately. Florida employers can seek fast-tracked injunctions, so early legal advice is essential.
Working with Miami Employment Agreement Attorneys
If you signed a non-compete and are unsure whether it is enforceable, or if your employer is threatening legal action, getting legal advice before you respond or make career decisions can make a significant difference in the outcome.
Miami employment agreement attorneys Jason D. Berkowitz and Anisley Tarragona at BT Law Group, PLLC have experience representing both employees and employers in Florida non-compete disputes. They can review your agreement, assess your legal position under § 542.335 and the CHOICE Act, and explain your options clearly.
Call BT Law Group, PLLC at (305) 507-8506 or visit our office at 3050 Biscayne Blvd STE 205, Miami, FL 33137 to schedule a consultation about your non-compete agreement. We serve clients throughout Miami and South Florida.
Frequently Asked Questions About Florida Non-Competes
Is my Florida non-compete automatically enforceable if I signed it?
No. Signing a non-compete does not guarantee it is enforceable. The employer must still prove that the agreement protects a legitimate business interest and that the restrictions are reasonably necessary under § 542.335. Many signed non-competes contain overbroad terms that a court would modify or find unsupported by a valid business interest.
How long can a Florida non-compete last?
For employees, restrictions of 6 months or less are presumptively reasonable, and restrictions exceeding 2 years are presumptively unreasonable. For sellers of a business, restrictions of 3 years or less are presumptively reasonable, and restrictions of more than 7 years are presumptively unreasonable. Under the CHOICE Act, covered non-compete agreements can last up to 4 years, and covered garden leave agreements can require up to 4 years of advance notice.
What happens if I violate a non-compete in Florida?
Your former employer can file a lawsuit seeking an injunction, which is a court order stopping you from competing, along with monetary damages. Under § 542.335, if the employer proves a violation of an enforceable non-compete, the court must presume the employer suffered irreparable injury. This makes it easier for employers to obtain emergency court orders before a full trial.
Does the new CHOICE Act affect my existing non-compete?
The CHOICE Act applies only to agreements that meet its specific requirements, including the salary threshold, covered-employee definition, and required agreement terms. If your existing non-compete was signed before the CHOICE Act’s constitutional effective date of July 1, 2025, it will generally be analyzed under § 542.335 unless it is amended or replaced with an agreement that meets the CHOICE Act’s requirements. The Act does not say that all earlier non-competes automatically become covered agreements.
Can I negotiate or challenge a non-compete before I sign?
Yes. Negotiating the terms of a non-compete before signing is often the best opportunity to limit its scope. You can request changes to the time period, geographic area, or activity restrictions. An attorney can help you identify which terms are worth pushing back on and what alternatives to propose.
Does working remotely in Florida from another state affect my non-compete?
This depends on the agreement’s choice-of-law provision and where you primarily perform work. Under the CHOICE Act, “covered employees” must maintain a “primary place of work” in Florida, meaning they spend more work time in Florida than in any other single workplace. Remote work arrangements can complicate which state’s law applies, especially when the employer is based in one state and the employee works from another.
