The Florida CHOICE Act gave employers a new tool for keeping departing employees away from competitors: the covered garden leave agreement. The employee stays on the payroll at full salary and benefits for a notice period of up to four years and cannot work for another employer without the original employer’s permission.
At Cantrell Schuette, we review these agreements for executives asked to sign them and for businesses that want to use them.
What Is Garden Leave?
Garden leave is a contract term that requires an employee to give extended advance notice before leaving. During the notice period, the employee is still employed and paid, but the employer can send the employee home with no duties. The CHOICE Act changed how long a garden leave agreement can run and how readily a Florida court will enforce it.
What the Florida CHOICE Act Changed
The Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (CHOICE) Act, in Chapter 542, Part II of the Florida Statutes, took effect on July 1, 2025. It created two categories of restrictive covenants that, when their requirements are met, are not treated as a restraint of trade: the covered garden leave agreement and what the statute calls the covered noncompete agreement.
The Act applies only to a covered employee: an employee or individual contractor who earns, or is reasonably expected to earn, a salary greater than twice the annual mean wage of the Florida county where the covered employer has its principal place of business. For an out-of-state employer, the employee’s home county is used. Two details of that salary threshold matter:
- Salary means base annualized compensation. Health care benefits, severance pay, retirement benefits, expense reimbursements, discretionary incentives, and anticipated but indeterminable pay such as tips, bonuses, and commissions do not count toward it.
- Health care practitioners, as defined in section 456.001 of the Florida Statutes, are excluded entirely.
It applies to any such employee whose primary place of work is in Florida, regardless of a choice of law clause, and to agreements with a Florida-based employer that expressly choose Florida law.
How a Covered Garden Leave Agreement Works
In a covered garden leave agreement, both sides agree to up to four years of advance notice before either ends the relationship. The employee agrees not to resign during that period, and the employer keeps the employee on the payroll at the same salary and benefits paid in the month before the notice period began. Under section 542.44, the agreement is fully enforceable only if it provides that:
- After the first 90 days of the notice period, the employee does not have to provide any services.
- The employee may engage in nonwork activities at any time, including during business hours.
- With the employer’s permission, the employee may work for another employer during the notice period.
- The employer may shorten the notice period with at least 30 days’ written notice.
The employer need not pay discretionary bonuses or assign work during the notice period, and may reduce pay for gross misconduct.
Notice and Review Requirements Before You Sign
The employer must provide the proposed agreement at least seven days before the offer expires: the job offer for a new hire, or the offer to enter the agreement for a current employee. The employee must be advised in writing, before signing, of the right to seek counsel and must acknowledge in writing receiving confidential information or customer relationships.
That acknowledgment matters later, because a court must presume access to confidential information or customer relationships once it is signed. Our non-compete and employee mobility attorneys read garden leave terms alongside any non-compete, non-solicitation, or confidentiality provisions in the same contract.
How Garden Leave Interacts With a Non-Compete Agreement
Executive contracts often pair garden leave with a non-compete agreement, and the Act addresses both. A covered non-compete under section 542.45 may last up to four years after employment ends, within whatever geographic area the agreement defines, and must meet the same notice and right-to-counsel rules.
The two periods are linked. A covered non-compete must provide that the non-compete period is reduced day-for-day by any part of the garden leave notice period in which the employee did not work. Days the employee actually worked during the notice period, such as the first 90, do not count toward the reduction.
Enforcement: Mandatory Preliminary Injunctions
This is where the Act changes the most. When an employer alleges a breach, the court must preliminarily enjoin the employee from working for anyone else during the notice period, and must also enjoin the hiring business. The court may modify or dissolve the injunction only if the employee proves, by clear and convincing evidence based on nonconfidential information, one of two things:
- The employee will not perform similar work during the notice period and will not use the employer’s confidential information or customer relationships.
- The employer failed to pay the agreed salary and benefits and did not cure after a reasonable opportunity.
The prevailing party recovers reasonable attorney fees and costs, and the employer may also seek damages.
Agreements the CHOICE Act Does Not Cover
An agreement that misses any requirement, or involves an employee below the salary threshold, is not covered. It falls under section 542.335, the general Florida non-compete law that continues to govern agreements outside the Act. There, the employer must prove a legitimate business interest, a restraint longer than two years against a former employee is presumed unreasonable, and a court must modify an overbroad restriction down to what is reasonably necessary rather than strike it.
The first question our Florida non-compete attorneys ask is therefore whether the agreement is actually covered. Our guide to whether a non-compete is enforceable in Florida walks through the section 542.335 analysis.
Frequently Asked Questions
What is garden leave in Florida?
Garden leave is a paid notice period written into an employment contract. The employee gives up to four years of advance notice, keeps the same salary and benefits, and cannot work for another employer without permission. The Florida CHOICE Act, effective July 1, 2025, made these agreements enforceable by mandatory preliminary injunction.
Who is a covered employee under the Florida CHOICE Act?
A covered employee is an employee or individual contractor who earns, or is expected to earn, a base salary greater than twice the annual mean wage of the Florida county where the employer has its principal place of business, or where the employee lives if the employer is out of state. Health care practitioners are excluded.
Do I get paid during garden leave?
Yes. A covered garden leave agreement must continue the salary and benefits the employee received in the month before the notice period began. The employer need not pay discretionary bonuses, and may reduce pay or benefits for gross misconduct without breaching the agreement.
Can I work for a competitor while on garden leave?
Not without the employer’s permission. The employee may pursue nonwork activities during the notice period but may not work for another business unless the employer agrees. If the employee does, the court must issue a preliminary injunction on the employer’s request.
Can a garden leave agreement be negotiated?
Yes, before it is signed. The statute sets a four-year maximum, not a minimum, so the length of the notice period, the definition of salary and benefits, and the terms of any paired non-compete are all open to negotiation during the review period, which must run at least seven days.
Reviewing a Garden Leave Agreement Before the Deadline
The Florida CHOICE Act rewards the party that understands the agreement before it is signed. For employees, the review period before signing, which must run at least seven days, is the point at which the notice period and the link to a non-compete can still be negotiated. Our guide on how to negotiate a non-compete covers the terms most often open for discussion.
Cantrell Schuette represents employees and employers nationwide in non-compete and restrictive covenant matters, including garden leave agreements under the Florida CHOICE Act. If you have been handed a covered garden leave agreement, or are deciding whether to use one, contact Cantrell Schuette today to schedule a consultation and understand your legal options.