§ 542.45 — Covered noncompete agreements

Florida § 542.45

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

Text

(1) APPLICABILITY. — This section applies to: (a) A covered noncompete 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 noncompete 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. In either case, if any provision of this section is in conflict with any other law, the provisions of this section govern.

(2) RESTRAINT OF TRADE. — A covered noncompete 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 noncompete agreement and was provided notice as described in subsection (3); (b) A covered employee acknowledges, in writing, that in the course of his or her employment, the covered employee will receive confidential information or customer relationships; and (c) A covered noncompete agreement provides that the noncompete period is reduced day-for-day by any nonworking portion of the notice period, pursuant to a covered garden leave agreement between the covered employee and the covered employer, if applicable.

(3) NOTICE. — A covered employer must provide a proposed covered noncompete agreement to: (a) A prospective covered employee at least 7 days before an offer of employment expires; or (b) A current covered employee at least 7 days before the date that an offer to enter into a covered noncompete agreement expires.

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

(5) BREACH OF COVERED NONCOMPETE AGREEMENT; REMEDIES. — (a) Upon application by a covered employer seeking enforcement of a covered noncompete 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 noncompete 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 noncompete period, any work similar to the services provided to the covered employer during the 3-year period preceding the commencement of the noncompete period, or use confidential information or customer relationships of the covered employer; 2. The covered employer has failed to pay or provide the consideration provided for in the covered noncompete agreement and has had a reasonable opportunity to cure the failure; or 3. The business, entity, or individual seeking to employ or engage the covered employee is not engaged in, and is not planning or preparing to engage in during the noncompete period, business activity similar to that engaged in by the covered employer in the geographic area specified in the noncompete agreement. (b) Upon application by a covered employer seeking enforcement of a covered noncompete agreement, a court must preliminarily enjoin a business, an entity, or an individual from engaging a covered employee during the covered employee’s noncompete 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 noncompete 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 during the noncompete period, business activity similar to that engaged in by the covered employer in the geographic area specified in the noncompete agreement. 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 in 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 noncompete period, which reduction or other action may not be considered a breach of the covered noncompete agreement. Any action regarding a restrictive covenant that does not meet the definition of a covered garden leave agreement or a covered noncompete agreement as provided in this part is governed by s. 542.335.

Legislative History

s. 2, ch. 2025-213.