§ 542.44 — Covered garden leave agreement

Florida § 542.44

• Jurisdiction: Florida
• Title: XXXIII
• Ch. 542: COMBINATIONS RESTRICTING TRADE OR COMMERCE

Text

(1) APPLICABILITY. — This section applies to: (a) A covered garden leave agreement with a covered employee who maintains a primary place of work in this state, regardless of any applicable choice of law provisions; or (b) A covered garden leave agreement with a covered employer whose principal place of business is in this state and which agreement is expressly governed by the laws of this state. If any provision of this section is in conflict with any other law, the provisions of this section shall govern.

(2) RESTRAINT OF TRADE. — A covered garden leave agreement does not violate public policy as a restraint of trade, as described in s. 542.18, or an attempt to monopolize trade or commerce in this state, as described in s. 542.19, and is fully enforceable according to its terms, provided that: (a) A covered employee was advised, in writing, of the right to seek counsel before execution of the covered garden leave agreement and was provided notice as described in subsection (3); (b) A covered employee acknowledges, in writing, receipt of confidential information or customer relationships; and (c) The covered garden leave agreement provides that: 1. After the first 90 days of the notice period, the covered employee does not have to provide services to the covered employer; 2. The covered employee may engage in nonwork activities at any time, including during normal business hours, during the remainder of the notice period; 3. The covered employee may, with the permission of the covered employer, work for another employer while still employed by the covered employer during the remainder of the notice period; and 4. The garden leave agreement notice period may be reduced during the notice period if the covered employer provides at least 30 days’ advance notice in writing to the covered employee.

(3) NOTICE. — (a) A covered employer must provide a proposed covered garden leave agreement to: 1. A prospective covered employee at least 7 days before an offer of employment expires; or 2. A current covered employee at least 7 days before the date that an offer to enter into a covered garden leave agreement expires. (b) A covered employer may, as provided for in the covered garden leave agreement, shorten the term of the notice period at any time during the notice period by providing at least 30 days’ advance notice in writing to the covered employee.

(4) OTHER AGREEMENTS. — This section does not affect or limit the enforceability of any other employment agreement or any other agreement.

(5) BREACH OF A COVERED GARDEN LEAVE AGREEMENT; REMEDIES. — (a) Upon application by a covered employer seeking enforcement of a covered garden leave agreement, a court must preliminarily enjoin a covered employee from providing services to any business, entity, or individual other than the covered employer during the notice period. The court may modify or dissolve the injunction only if the covered employee establishes by clear and convincing evidence, based on nonconfidential information, that: 1. The covered employee will not perform, during the notice period, any work similar to the services provided to the covered employer during the 3-year period preceding the commencement of the notice period, or use confidential information or customer relationships of the covered employer; or 2. The covered employer has failed to pay or provide the salary and benefits provided for in the covered garden leave agreement during the notice period and has had a reasonable opportunity to cure the failure. (b) Upon application by a covered employer seeking enforcement of a covered garden leave agreement, a court must preliminarily enjoin a business, an entity, or an individual from engaging a covered employee during the covered employee’s notice period. The court may modify or dissolve the injunction only if the business, entity, or individual establishes by clear and convincing evidence, based on nonconfidential information, that: 1. The covered employee will not provide any services similar to the services provided to the covered employer during the 3-year period preceding the commencement of the notice period, or use confidential information or customer relationships of the covered employer; or 2. The business or individual seeking to employ or engage the covered employee is not engaged in, and is not planning or preparing to engage in, any business activity similar to that engaged in by the covered employer during the notice period. Any information filed with the court which the covered employer deems to be confidential must be filed under seal to protect confidentiality or avoid substantial injury. A court must presume that an employee or individual contractor has access to confidential information or customer relationships if the employee or individual contractor acknowledges the access or receipt of such access in writing. (c) The injunctive relief provided under this section is not an exclusive remedy, and a prevailing covered employer is entitled to recover all available monetary damages for all available claims. (d) In any action to enforce this section, the prevailing party is entitled to reasonable attorney fees and costs. (e) If the covered employee engages in gross misconduct against the covered employer, the covered employer may reduce the salary or benefits of the covered employee or take other appropriate action during the notice period, which reduction or other action may not be considered a breach of the covered garden leave agreement.

Legislative History

s. 2, ch. 2025-213.