From Skepticism to Statutory Enthusiasm

Florida’s current statute is the product of a long shift from commonlaw skepticism to statutory authorization. Early cases like Love v. Miami Laundry Co., 118 Fla. 137, 160 So. 32 (1934) refused to enjoin former employees where restraints were viewed as harsh on workers and the public. In 1953, the Legislature adopted § 542.12, which allowed some noncompetes to protect trade secrets and customer relationships, but the decisional law that followed was uneven. The statutory scheme was folded into the Florida Antitrust Act, which broadly voided restraints of trade while carving out exceptions for certain franchise and trademarklicensing arrangements. Treatise writers note that those early provisions were aimed at policing classic restraintoftrade concerns, not building a comprehensive law of restrictive covenants.

In 1990, the Legislature adopted § 542.33; in 1996, it replaced that statute with § 542.335, which remains the core noncompete provision. § 542.335 expressly overrides the general ban on restraints in § 542.18 and declares that contracts restricting or prohibiting competition “so long as [they] are reasonable in time, area, and line of business” are not prohibited. It requires a written, signed covenant and demands that the party seeking enforcement plead and prove at least one “legitimate business interest.” The statute lists several such interests, including trade secrets, valuable confidential information, substantial relationships with specific customers or patients, customer goodwill, and extraordinary or specialized training, and makes clear that the list is non-exhaustive.

Florida treatises echo this structure. Employment in Florida and Florida Small Business Practice both emphasize that a restrictive covenant “not supported by a legitimate business interest is unlawful and is void and unenforceable,” and they stress that reasonableness in time and geography remains central, particularly in saleofbusiness and franchise settings. Florida Jurisprudence, in turn, reminds practitioners that “special facts” must exist beyond ordinary competition: without such facts, an employer cannot simply contract away the risk that an atwill employee will compete

How Florida Courts Apply Section 542.335

Florida appellate decisions fill in what “reasonableness” and “legitimate business interests” mean on the ground. The Florida Supreme Court’s decision in White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC, 226 So. 3d 774 (Fla. 2017) is the leading modern example. The Court resolved a conflict on whether homehealth referral sources can be a legitimate business interest. It held that they can, depending on the facts, and emphasized that trial courts have “fairly wide discretion” to apply § 542.335’s open-ended reasonableness standard in context. Florida Torts and Employment in Florida treat these cases as confirming that the statutory list of interests is illustrative, not exhaustive, and that disputes over protectable interests are fact-intensive and industry-specific.

District courts of appeal have enforced the statute with vigor. In Envtl. Servs. v. Carter, 9 So. 3d 1258 (Fla. 5th DCA 2009), the Fifth District reversed a denial of injunctive relief, stressing that trial courts must honor the statutory presumptions and may not rewrite the parties’ contract simply because a judge thinks the restraint is harsh. In Hilb Rogal & Hobbs of Fla., Inc. v. Grimmel, 48 So. 3d 957 (Fla. 4th DCA 2010), the Fourth District affirmed an injunction enforcing a twoyear noncompete against an insurance producer, leaning on the statute’s presumptions and its directive to construe covenants to protect legitimate interests. More recently, in GFA Int’l, Inc. v. Trillas, 327 So. 3d 872 (Fla. 3d DCA 2021), the Third District reiterated that courts must apply the presumption of irreparable harm once the employer proves a qualifying interest and breach, and it faulted the trial court for weighing employee hardship that the statute tells courts to disregard.

lorida practice sources treat injunctive relief as the “normal” remedy in this setting. Florida Civil Practice Before Trial explains that under § 542.335(1)(j) a violation of an enforceable covenant creates a rebuttable presumption of irreparable injury, and that courts may tailor injunctions to limit only conduct reasonably necessary to protect the employer’s interest. A leading pretrial practice guide likewise notes that while irreparable harm is ordinarily a hard threshold for injunctions, in noncompete cases the statutory presumption and the difficulty of quantifying competitive harm justify equitable relief. The Third District’s decision in Data Payment Systems, Inc. v. Caso illustrates this point: the court reversed a denial of a temporary injunction where the trial judge had demanded quantified proof of harm and failed to apply the statutory presumption.

At the same time, courts sometimes narrow or refuse enforcement. Ulanowicz’s survey of tortiousinterference cases collects Florida decisions in which employers lost because they could not show irreparable harm, because customers independently sought out the former employee, or because the employer abandoned the relevant line of business. Florida Torts makes the same point: if an employer exits or sells a business, its legitimate interest in preventing competition in that line disappears. Other decisions, such as Infinity Home Care, LLC v. Amedisys Holding, LLC, show courts modifying overbroad geographic or activity restrictions rather than throwing out the covenant altogether, consistent with the statute’s express bluepenciling directive.

Pressure Points: Reasonableness and Public Policy

Florida’s pro-enforcement statute has drawn criticism from outside the state. In Brown & Brown, Inc. v. Johnson, the New York Court of Appeals refused to apply a Florida choiceoflaw clause in a nonsolicitation agreement, describing Florida’s statute as failing a “truly obnoxious” publicpolicy test because it forbids courts from considering employee hardship and requires courts to construe covenants in favor of the employer. Hank Jackson’s Florida Bar Journal article uses Brown & Brown to frame a deeper concern: that Florida’s statute has a “nearly exclusive focus on the employer’s interests,” even though Florida courts still invoke reasonableness and trialcourt discretion. Florida Jurisprudence similarly acknowledges the statute’s tilt while warning that noncompetes remain restraints of trade and should protect only against unfair, not ordinary, competition.

hysician cases highlight another pressure point. Amy Ronner traces how Florida courts have become more cautious about restraints that interfere with the doctorpatient relationship, including decisions like Humana Medical Plan, Inc. v. Jacobson, which invalidated a liquidateddamages clause that effectively penalized patients for following their doctors. She concludes that, even as the legislative trend favors stronger employer rights, physician cases often drift back toward employee and patient protection. Florida smallbusiness and healthlaw practice materials pick up this theme, emphasizing both the ubiquity of physician noncompetes and the ethical tension they create.

These crosscurrents reveal a statute that is simultaneously flexible and slanted. It invites trial courts to make contextspecific judgments about reasonableness, yet it stacks the deck with presumptions, antiemployee instructions, and a strong invitation to modify rather than void. That baseline matters when we turn to the FTC’s attempted federal intervention and Florida’s legislative response.

The Noncompete Clause Rule

In April 2024, the FTC issued its Noncompete Clause Rule, a nationwide regulation that largely bans employers from entering into or enforcing noncompete clauses with workers. The final rule applies to employees and many independent contractors, invalidates most existing noncompetes, and bars new ones, with a narrow exception for certain senior executives. It also requires employers to give individualized notice that existing noncompetes with most workers are no longer enforceable.

The rule rests on two pillars. First, the FTC invoked its authority under sections 5 and 6(g) of the FTC Act to define and regulate “unfair methods of competition” through substantive rulemaking. Second, the agency assembled an empirical record suggesting that noncompetes suppress wages, reduce business formation, and harm innovation, and that these harms fall especially hard on lowwage workers. Scholars like Orly Lobel have developed a similar picture, arguing that noncompetes and bundled restrictive covenants depress mobility and innovation across the economy and that a national, absolute ban would best serve competition policy.

Stewart Schwab’s contribution to the University of Florida symposium on noncompetes contrasts the FTC’s near-total ban with the Uniform Restrictive Employment Agreement Act (UREAA), which offers a more calibrated approach.

Stewart Schwab’s contribution to the University of Florida symposium on noncompetes contrasts the FTC’s near-total ban with the Uniform Restrictive Employment Agreement Act (UREAA), which offers a more calibrated approach.

Litigation and the “Failed” Ban

Litigation was immediate and intense. Business groups filed suits in multiple federal courts, arguing that the FTC lacks substantive rulemaking authority under section 6(g), that the rule exceeds any plausible reading of section 5, and that it triggers the majorquestions doctrine. Zöe Clarke’s Nova Law Review note describes these challenges and explains how the NonCompete Clause Rule expressly supersedes state laws that allow noncompetes while preserving those, like California’s, that provide greater worker protection.

As those cases proceeded, courts issued preliminary relief that prevented the rule from taking effect for at least some plaintiffs. Charlotte Garden predicted that the rule would be especially vulnerable under the majorquestions doctrine and that states might move ahead with their own reforms while the federal rule was tied up in court. John Getty’s Florida Bar Journal column goes further, observing that “given the recent change in presidential administration, it appears more and more likely that previous efforts to ban noncompete agreements at the federal level will be rolled back.”

By the time Florida enacted the CHOICE Act, the FTC rule had already been delayed and shadowed by litigation, and its prospects looked dim. For Florida practice, the federal “ban” has functioned less as a binding command and more as a powerful signal in an ongoing policy debate.

What the FTC Rule Would Have Meant for Florida

Had the FTC rule taken full effect, it would have preempted much of Florida’s proenforcement regime for ordinary employees. Clarke explains that the rule defines noncompete clauses broadly enough to reach many functionally similar restraints that prevent a worker from taking a new job or starting a business, regardless of state law authorizing such covenants. The rule would have left room for certain noncompetes in bona fide sales of business and for some existing seniorexecutive covenants, but it would have wiped out most employee noncompetes governed by section 542.335.

The FTC also distinguished noncompetes from other covenants. It suggested that many nondisclosure, nonsolicitation, and gardenleave arrangements could survive, so long as they did not function as de facto bans on post-employment work. Clarke argues that, in a post-ban world, employers would likely lean more heavily on these alternative tools and on tradesecret law but would have to be careful that their agreements did not effectively replicate a prohibited noncompete.

Florida never had to live under that regime. Instead, as federal litigation slowed the rule, the Legislature moved in the opposite direction.

The CHOICE Act’s Structure

The CHOICE Act, effective July 1, 2025, creates a new statutory framework for “covered noncompete agreements” and “covered garden leave agreements” with certain highearning workers. The Act is codified at § 542.41 through 542.45 and explicitly coexists with § 542.335 rather than replacing it. A worker is “covered” if she meets specified compensation thresholds (tied to multiples of the state average wage) and holds a qualifying role; most physicians are excluded from the new regime.

For covered workers, the CHOICE Act makes several important moves. It authorizes noncompetes and gardenleave periods of up to four years and declares that such agreements are not unlawful restraints of trade under Florida law. It requires courts to issue preliminary injunctions upon a prima facie showing of breach and a qualifying agreement, subject only to limited defenses proved by clear and convincing evidence. It also imposes frontend requirements, such as written notice and a sevenday review period, that must be satisfied for the agreement to qualify. Florida practice guidance describes the CHOICE Act as creating some of the strongest noncompete protections for employers in the country, at least for this narrow class of workers.

A Dual Track: Ordinary Workers and Covered Workers

The result is a dual regime. For most Florida employees and independent contractors, § 542.335 still provides the governing rules. Employers must prove a legitimate business interest, reasonableness of scope, and breach, and courts retain room to weigh competing facts within the statute’s constraints. The presumptions of irreparable harm, the ban on considering employee hardship, and the invitation to bluepencil all still apply, but judges know from White and other cases that they can adjust remedies and narrow covenants in light of industryspecific facts. Employment in Florida and Florida Torts advise litigators to treat this as a burdenshifting regime: once prima facie reasonableness is shown, the employee must carry the burden of proving overbreadth or overlength.

For covered workers, the CHOICE Act changes the conversation. Once the employer shows a covered agreement and a likely breach, the court is largely required to grant interim relief, and the Act’s declaration that these agreements are not restraints of trade pushes back against any residual instinct to treat long noncompetes with suspicion. In practice, that means a fouryear noncompete for a Csuite executive may now be easier to enforce than a much shorter restraint for a midlevel employee.

The CHOICE Act also interacts in interesting ways with federal debates about alternatives to noncompetes. Clarke and Rachel ArnowRichman both highlight garden leave, nondisclosure, and nonsolicitation agreements as possible substitutes where noncompetes are banned or curtailed. The CHOICE Act expressly embraces garden leave as a permissible tool at the top of the market. For rankandfile workers, however, Florida has not adopted the kinds of frontend controls that ArnowRichman advocates, such as heightened disclosure requirements or limits on defaultuse of noncompetes in onboarding paperwork.

Litigation Tactics, Trade Secrets, and Tort Backstops

For litigators, Florida’s dual regime raises both opportunities and risks. On the employer side, Jason Taylor’s Trial Advocates Quarterly article stresses the importance of careful drafting, consistent enforcement, and factual support for any claimed legitimate business interest. Those lessons apply equally under section 542.335 and the CHOICE Act. Inconsistent enforcement or sloppy definitions can fuel defenses and weaken an injunction request. Florida smallbusiness practice treatises make the same point in the saleofbusiness and franchise contexts, where noncompetes are routine but still subject to reasonableness limits.

Tradesecret issues often surface alongside noncompete claims. The Florida Evidence Courtroom Manual emphasizes that when a party asserts the tradesecret privilege to resist discovery, the trial court must determine whether the requested information is in fact a trade secret and, if so, whether the requesting party has shown a reasonable necessity for disclosure—usually via in camera inspection and protective orders. In noncompete cases that rest on confidentialinformation or tradesecret interests, these discovery fights can determine how much of the employer’s claimed “secret sauce” the court will actually see.

On the employee side, Peter Ulanowicz reminds practitioners that Florida law permits tortiousinterference claims against employers, and even their lawyers, who weaponize unenforceable covenants to scare off new employers. He catalogues cases where courts refused to enforce noncompetes because the employer could not show irreparable harm, because it had abandoned its business, or because customers voluntarily chose the former employee, yet threats of litigation still cost the employee a job. In those situations, the former employee may be able to “take the fight to the bullies” with a tort claim. Florida practice guides on injunctive relief likewise note that irreparableinjury requirements cannot be waived and that contractual stipulations cannot substitute for the statutory standards—though section 542.335 partially displaces that backdrop by creating a presumption in noncompete cases.

Physician cases remain a special category within this litigation environment. Ronner’s Healers Barred from Healing shows how Florida courts have become increasingly sensitive to the doctorpatient relationship, sometimes invalidating or narrowing restraints that would otherwise be enforceable, and treating patients as something more than transferable goodwill. Florida healthlaw and smallbusiness treatises underscore the same theme: in medicine, noncompetes are common, but their enforcement can sit uneasily with professional ethics and publichealth concerns. Those instincts may pull in a different direction than the CHOICE Act’s muscular enforcement tools, especially if future physician-specific legislation tightens the rules for medical noncompetes.

Benefits: Predictability and Investment

From an employer’s perspective, Florida’s regime offers real advantages. Section 542.335 provides clear statutory anchors, and the CHOICE Act gives high-end employers a reliable template for longer noncompetes and gardenleave arrangements. Taylor notes that a “proper noncompete agreement, created using factual, supportable evidence, provides the foundation for a strong position for enforcement from pre-suit negotiation to litigation.” Getty similarly emphasizes that Florida’s statute has, since the mid-1990s, reliably favored restrictive covenants, unlike many other states. Treatises on employment, torts, and smallbusiness practice advise Florida employers to treat noncompetes as part of a broader strategy that also includes confidentiality agreements, invention assignments, and careful informationmanagement practices.

Lobel’s work reminds us that noncompetes are not the only way to encourage investment, but she acknowledges that employers want some method to protect trade secrets and customer relationships. The CHOICE Act’s focus on highearning, policymaking workers arguably targets those contexts where the stakes are highest and where garden leave or paid noncompetes may be more palatable. UREAA’s drafters took a similar view, treating noncompetes as one tool in a broader portfolio of restrictive agreements that can be reasonable when used sparingly and transparently.

Costs: Default-Use Restraints and Uneven Protection

The costs of Florida’s approach fall most heavily on workers who are outside the CHOICE Act but still subject to section 542.335. ArnowRichman describes how employers often deploy noncompetes as standardized boilerplate at hiring, without serious analysis of whether a particular job truly requires that level of restraint. Vague doctrine about what counts as a protectable informational interest and institutional reliance on form documents encourage “defaultuse” noncompetes that deter mobility even when they might not hold up in court. Florida Jurisprudence and Florida Torts caution that such restraints should protect only against unfair competition backed by special facts, yet the statute’s strong presumptions and proenforcement can make that line hard to police in practice.

Clarke’s analysis of the FTC rule underscores how widespread these agreements are, including among lowwage workers who have little bargaining power and limited access to counsel. Lobel situates noncompetes within broader concerns about inequality and competition, arguing that restraints on mobility can depress wages, suppress entrepreneurship, and widen existing gaps. Although Florida’s statute uses the language of “reasonableness,” Jackson warns that features like the ban on considering employee hardship and the instruction to construe covenants in favor of employers tilt the playing field in practice. Brown & Brown’s refusal to apply Florida law abroad is a vivid signal of how extreme those features can appear to other jurisdictions.

Practical Counseling in a Maximalist State

For Florida counsel, the task now is to navigate this maximalist landscape responsibly. On the employer side, that means resisting the temptation to use onesizefitsall noncompete forms. ArnowRichman suggests focusing on the front end: asking whether a legitimate business interest truly exists and whether a narrower tool, such as a nondisclosure or customer nonsolicitation, would suffice. Getty’s survey of emerging state laws shows common trends that Florida employers should keep in mind, including wage thresholds, bans for lowerpaid workers, and heightened notice requirements. Even if Florida has not yet adopted those rules, national employers may want to harmonize their practices.

On the employee side, lawyers should treat noncompetes as negotiable, especially for workers who plainly fall outside any plausible legitimate interest. Ronner points out that physicians often sign adhesive contracts without appreciating the longterm consequences; similar dynamics exist in many industries. Counsel can add value by pushing for narrower geographic scopes, shorter durations, or conversion of true noncompetes into nonsolicitation clauses. In litigation, Ulanowicz’s tortiousinterference theory remains a useful counterweight when former employers and their counsel threaten baseless suits to scare away new opportunities.

Finally, Florida practitioners should watch for future legislative adjustments. Garden’s UREAA Foreword and Schwab’s analysis both suggest that, if the FTC rule ultimately fails, states will remain the primary arena for noncompete reform, and that more calibrated statutes are likely. Even in Florida, ideas such as wage floors for enforceable noncompetes, special rules for physicians and other professionals, or heightened disclosures at the time of contract may gain traction as courts and policymakers grapple with the hardest cases.