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Florida Non-Compete Agreements in 2025: How to Draft Enforceable, Business-Smart Covenants in Miami-Dade

Where the Law Stands Right Now (October 2025)

• Florida’s baseline law (Fla. Stat. § 542.335) still governs most restrictive covenants. To enforce a non-compete, the agreement must be in writing, signed, protect at least one legitimate business interest (e.g., trade secrets, confidential information, substantial client relationships, goodwill, or specialized training), and be reasonable in time, area, and line of business. The statute gives rebuttable presumptions on duration (e.g., up to 6 months typically reasonable and more than 2 years typically unreasonable for former employees; longer windows for franchisees and sellers of a business). Courts may blue-pencil overbroad terms to the minimum necessary and will presume irreparable injury when a valid covenant is breached. ( Online Sunshine)
• Florida’s 2025 CHOICE Act added powerful new options for covered, highly paid employees and formalized garden-leave arrangements. It creates employer-friendly presumptions, allows longer durations (up to four years in certain circumstances), and imposes technical prerequisites (e.g., written acknowledgment of confidential access, seven-day review period, notice of right to counsel). Exact coverage is tied to an income threshold indexed to local wages; scope and mechanics matter. This law supplements, not replaces, § 542.335. ( Morrison Foerster)
• The FTC’s nationwide ban on non-competes is not in effect. The rule was enjoined and the agency has since dropped its appeal, signaling a return to state-by-state rules (like Florida’s). ( Federal Trade Commission)

What “Enforceable” Looks Like in Florida

• NDA (Non-Disclosure Agreement). This is your universal baseline. Define protected information precisely, include return/deletion obligations, and add injunctive-relief language. A strong NDA underpins any non-compete or non-solicit by establishing the legitimate business interest in confidential data. (Florida explicitly recognizes “valuable confidential business information” even if it’s not a trade secret.) ( Online Sunshine)
• Customer/Employee Non-Solicit. Florida courts routinely enforce targeted non-solicitation terms when tied to customer goodwill or substantial relationships. Draft by channel and segment (named accounts, active prospects, key vendors), and set clean time limits (commonly 12–24 months for former employees), with carve-outs for general advertising. ( Online Sunshine)
• Role-Specific Non-Compete. Reserve true non-competes for roles where competitive harm is most acute (executives, heads of sales, product leaders, quants/engineers with roadmap access). Scope the restriction to specific competitors, product lines, or geographies that track your market—don’t block the entire industry if you only sell into South Florida or a defined segment. Use § 542.335’s presumptions as a ceiling, not a default. ( Online Sunshine)
• Garden Leave (for covered, high-comp roles). When the person is truly mission-critical, consider a paid, post-notice non-work period that runs concurrently with or credits against the non-compete. Florida’s CHOICE Act expressly supports garden leave with detailed conditions—great leverage for executive transitions, but budget for the payroll. ( Morrison Foerster)

Drafting Checklist: 14 Clauses That Move the Needle

• Parties, Role, and Consideration. Identify the entity, the exact position, and consideration (offer letter, promotion, bonus, equity, garden-leave pay). For incumbents, consider separate consideration (e.g., raise, grant, bonus).
• Legitimate Business Interests. Tie restrictions to specific interests you can prove: named strategic accounts, pricing matrices, models, roadmaps, go-to-market plans, or unique training. (The statute lists these interests and lets you show others, too.) ( Online Sunshine)
• Restricted Activities (not just “work for a competitor”). Define “competitive services” by functions the employee actually performed or supervised (sales to specific verticals, development of particular tech, management of defined territories).
• Competitor Definition. Consider a curated competitor schedule that you can update with notice (and a fairness cap), or a standards-based definition (“any business that offers [X product/service] in [defined market]”).
• Geography. Use data-driven territories: the employee’s book of business, counties where you operate, or specific accounts. Florida courts will enforce non-competes without rigid maps if the scope matches the competitive reality, but precise geography makes enforcement faster. ( Mavrick Law Firm)
• Duration. Stay within Florida’s presumptions for employees when using § 542.335, and remember the CHOICE Act’s longer windows only attach if you meet its technical thresholds for covered employees. ( Online Sunshine)
• Garden Leave Mechanics (if used). Spell out pay, benefits, duties (if any), outside-work permissions, and the credit-against-non-compete formula required by the CHOICE Act for covered employees. ( Morrison Foerster)
• NDA + Data Hygiene. Pair the covenant with robust confidentiality, device/record return, and post-termination deletion.
• Non-Solicit—Customers and Staff. Prohibit targeted poaching of clients, prospects contacted in the last 12–18 months, and key employees; allow general ads.
• Notice and Review Period (CHOICE compliance). For covered roles, include the seven-day review and notice of the right to counsel. ( Henderson Franklin)
• Florida Law, Miami-Dade Venue. Lock jurisdiction and venue to keep disputes local and predictable.
• Blue-Pencil & Injunctive Relief. Invoke § 542.335’s modification power and the statutory presumption of irreparable harm for valid covenants. ( Online Sunshine)
• Tolling. Pause the restrictive period while the employee is in breach or during any court-ordered injunction.
• Assignment/Successors. Florida requires express authorization to let successors enforce employee covenants—add it now (critical for M&A). ( Online Sunshine)

When to Prefer a Non-Solicit Over a Non-Compete

Common Drafting Mistakes We Fix Weekly

• Copy-pasting national templates. Florida’s statute is unusually pro-enforcement but very technical—rely on Florida-specific language, presumptions, and remedies. ( Online Sunshine)
• Overbroad “industry-wide” bans. If you sell only to South Florida hospitals, don’t ban work for any healthcare company anywhere. Tie scope to where you actually compete.
• Forgetting assignment and successors. Without express language, buyers in an acquisition can’t enforce your covenants. ( Online Sunshine)
• Skipping the review/right-to-counsel notices required to unlock CHOICE Act benefits for covered employees. ( Henderson Franklin)
• Relying on the FTC ban headline. The rule isn’t enforceable; Florida law controls, and Florida just moved more employer-friendly for high earners. ( Federal Trade Commission)

Implementation Playbook (Miami-Dade Focus)

• Map Your Roles by Risk. Identify which positions truly justify non-competes (executives, GTM leadership, R&D, key client owners). Everyone else gets NDA + non-solicit.
• Pick the Statutory Path. Decide whether each agreement will rely on § 542.335 or the CHOICE Act (for covered employees). Use the correct duration, notices, and income threshold checks. ( Online Sunshine)
• Localize Geography. Use Miami-Dade (and, if needed, Broward/Palm Beach) or defined account lists; avoid national bans unless your operations justify them.
• Strengthen On- and Off-boarding. Issue agreements at offer (with the seven-day review for covered roles). At departure, collect devices, disable access, obtain a certificate of return/deletion, and remind the employee of restrictions.
• Train Managers. Teach hiring managers what they can’t ask a candidate bound by someone else’s covenant and how to escalate red flags.
• Enforcement Protocol. When a breach looms, move fast: send a preservation/notice letter, gather metadata (downloads, emails, CRM exports), and be ready for a targeted injunction—Florida courts can move quickly if your papers are tight. ( Online Sunshine)

FAQs We Hear Every Week

How We Can Help (and Why Now)

• Audit roles and risk to decide NDA / non-solicit / non-compete / garden leave mix
• Draft Florida-specific agreements that track § 542.335 and, when appropriate, the CHOICE Act
• Build onboarding and off-boarding checklists that make enforcement faster
• Prepare cease-and-desist / preservation templates and emergency injunction playbooks
• Train HR and managers on compliant roll-outs and candidate intake (to avoid tortious-interference claims)

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