Will Florida’s CHOICE Act Lead to an Increase in Garden Leave Agreements?

Garden Leave Agreements are tools that businesses can utilize in order to prevent employees from working for competitors, protect confidential information and trade secrets, and exert some control over an employee that will no longer be expected to work in the office. The employee remains on payroll, at their base salary, but does not engage in work, i.e., they stay home and work in their garden.

While our July 17, 2025, blog explored the Florida Contracts Honoring Opportunity, Investment, Confidentiality, and Economic Growth (“CHOICE”) Act’s implications for non-compete agreements, this installment focuses on the CHOICE Act’s implications on garden leave agreements. The CHOICE Act applies to garden leave contracts with high earners – those who earn a salary greater than twice the annual mean wage of the county in which either (1) their employer’s principal place of business is or (2) they reside.

Under the CHOICE Act, qualifying garden leave agreements may require garden leave for up to (4) four years before the employee is officially terminated and removed from the payroll. Employers may require those in these agreements to work for up to 90 days; after that, employees may disengage and, with permission, even work elsewhere. Moreover, during the restricted period in a garden leave agreement, the employer may unilaterally reduce the term of the agreement and any corresponding obligation to continue to pay the employee upon at least 30 days’ written notice.

For garden leave agreements to fall within the CHOICE Act, the following criteria must be met: the agreement must inform the employee in writing of the right to seek legal counsel, and provide at least seven (7) days to review it; the employee must acknowledge in writing that they may receive confidential client information during their employment; the agreement must explain that the employee is only required to work for the first 90 days and may pursue nonwork activities after that time; the agreement must state that the employee may not begin working elsewhere during the notice period without the employer’s written permission.

If a dispute arises regarding a garden leave agreement pursuant to the CHOICE Act, so long as the criteria above are met, a court should automatically issue a preliminary injunction against the employee. Courts may modify or dissolve the injunction only if the employee establishes by clear and convincing evidence that: (1) they will avoid similar work during the restricted period; (2) they will not misuse confidential information or customer relationships; (3) the employer fails to provide required compensation after a 30-day cure period; or (4) the new employer isn’t competing in the same geographic market.

Given the CHOICE Act’s new framework, more businesses may opt to use garden leave agreements. When evaluating whether it should the use this type of agreement, a business should consult with counsel, accountants, and insurance providers.

Thanks to Surbhi Bhatter, Williams Parker Summer Associate, for her research and drafting support on this article.