Strengthened by Statute, Shadowed by the NLRB: Florida’s Non-Compete Landscape in 2025

Florida employers face a dramatically shifting landscape in the enforcement of non-compete agreements. With the CHOICE Act now in effect and changes underway at the National Labor Relations Board (NLRB), both state and federal developments warrant close attention.

For years, Florida Statute § 542.335 has provided a reliable framework for enforcing restrictive covenants, permitting agreements that are reasonable in time, geographic scope, and business line. Courts are required to construe these covenants in a manner that favors protecting the employer’s legitimate business interests, such as trade secrets, confidential business information, or substantial customer relationships. That legal foundation remains in place, but the passage of the CHOICE Act has introduced new standards and new opportunities.

Effective July 1, 2025, the CHOICE Act enhances the structure and strength of Florida’s approach. It authorizes agreements that restrict competition for up to four years, combining any pre-termination garden-leave period with a post-termination non-compete. The law also creates a powerful procedural advantage for employers by mandating the issuance of a preliminary injunction unless the former worker can affirmatively demonstrate that such relief is unnecessary. However, this protection is not universal. The Act applies only to employees and independent contractors who earn more than twice the average annual wage for the county in which they primarily work. Based on current wage data, this threshold ranges from approximately $80,000 to $150,000 across the state of Florida. To invoke the statute, employers must also comply with strict formalities: the agreement must include a seven-day review period, written notice advising the worker of their right to counsel, and a written acknowledgment that the individual had access to confidential information or significant client relationships.

At the same time, the federal labor law backdrop is undergoing its own shift. In May 2023, then-NLRB General Counsel Jennifer Abruzzo issued Memorandum GC 23-08, asserting that most non-competes interfere with employees’ rights under Section 7 of the National Labor Relations Act. She contended that agreements which prevent employees from quitting and seeking new employment elsewhere could unlawfully deter concerted activity, such as organizing or protesting working conditions. That memo became a springboard for several unfair labor practice complaints and ALJ decisions, casting uncertainty over typical restrictive covenants in employment agreements.

That federal position began to soften in 2025. On February 14, Acting General Counsel William Cowen issued Memorandum GC 25-05, rescinding GC 23-08 and its related directives. The effect was immediate: NLRB field offices were no longer instructed to presume that non-compete clauses violate federal labor law. This rollback of the prior stance, however, did not amount to new precedent. Until the Board itself rules on a case that squarely addresses non-competes, the legal environment remains somewhat unsettled.

Further change appears likely. On July 17, President Trump nominated James Murphy and Scott Mayer to fill two vacant NLRB seats. Crystal Carey has also been nominated to serve as General Counsel. If confirmed, this group would form a management-leaning majority at the Board and in its chief enforcement office. Observers expect that they may soon move to limit or overturn recent high-impact cases like McLaren Macomb, which invalidated confidentiality provisions in severance agreements; Stericycle, Inc., which adopted a more worker-friendly standard for evaluating handbook rules; and Cemex Construction Materials Pacific, LLC, which changed the rules on employer responses to union card-check campaigns. Until those cases are formally reversed, however, employers must continue to treat them as binding.

Taken together, these developments suggest that Florida employers can move forward with greater confidence in using non-compete agreements for highly paid workers—but they must remain cautious. Section 7 rights under the NLRA are still in force, and overly broad restrictions that appear to punish organizing activity or ban workers from an entire industry may still prompt legal scrutiny. The best protection lies in careful drafting: tether the restrictions to demonstrable business interests, apply them only where permitted by the CHOICE Act, and stay current on NLRB decisions as the agency transitions.

Next Steps for Employers

• Review all existing non-compete agreements and identify which workers qualify as “covered earners” under the CHOICE Act.

• Update agreement templates to include the CHOICE Act’s required seven-day review period, written counsel notice, and written acknowledgment of access to protected business interests.

• Reassess geographic and temporal scopes of existing covenants to ensure they remain reasonable and enforceable under Florida law.

• Continue to comply with McLaren Macomb and Stericycle until they are explicitly overturned by the Board.

• Monitor federal labor policy developments, including the Senate confirmation process and subsequent NLRB decisions that may reshape the rules again.