Limits of Non-Compete Agreements: When a Restrictive Covenant Is Enforceable
The statutory test under Florida non-compete law
Florida employment law is among the most employer-friendly in the country on restrictive covenants, but a non-compete agreement is only enforceable if it meets the statutory test. Non-competes that fail it are unenforceable no matter how clearly they were written, and a labor and employment lawyer on either side will look at these requirements first.
Under Florida’s restrictive covenant statute, the agreement must be in a writing signed by the person it’s enforced against. The party seeking to enforce it must plead and prove a legitimate business interest that justifies the restriction, such as trade secrets, valuable confidential information, substantial customer relationships, customer goodwill tied to a specific geographic area or trade, or specialized training.
And the restriction must be reasonably necessary to protect that interest, which in practice means the terms of a non-compete agreement have to be reasonable in time, geographic scope and line of business.
How long the terms of a non-compete agreement can run
The statute gives courts presumptions about duration. For a former employee, agent or independent contractor, a restriction of six months or less is presumed reasonable and one longer than two years is presumed unreasonable. For a restriction tied to the sale of a business or an ownership interest, the presumptions are far more generous: three years or less is presumed reasonable and only a restriction longer than seven years is presumed unreasonable.
A non-compete agreement that’s too broad isn’t automatically unenforceable, either. Florida courts are directed to modify an overbroad restriction and enforce it as modified, rather than throw it out.
How to enforce a non-compete agreement
Employees ask us what happens if you violate non compete terms, and employers ask what it takes to enforce the non-compete agreement. Enforcement doesn’t always mean a lawsuit. When an employee leaves for a competitor, sending the new employer a copy of the signed non-compete agreement is often enough to end the problem, because the new employer doesn’t want to be sued for tortious interference. A cease-and-desist letter resolves many of the rest.
When a departing employee opens a competing business or a seller starts calling the customers they just sold you, a lawsuit is usually necessary, and the statute helps: a violation is presumed to cause irreparable injury, which supports an injunction, and the prevailing party can recover attorney’s fees.
The 2025 CHOICE Act
Since July 1, 2025, Florida has a second framework layered on top of the existing statute. The CHOICE Act applies to employees and independent contractors who earn more than twice the annual mean wage of the Florida county where the employer is based, and it makes covered non-compete and garden leave agreements presumptively enforceable for up to four years.
Three conditions attach. The employee must be advised in writing of the right to consult a lawyer, gets at least seven days to review the agreement before signing, and acknowledges in writing that the job comes with confidential information or customer relationships.
A court must preliminarily enjoin a covered employee who breaches, and the burden shifts to the employee to show why the restriction shouldn’t be upheld. Health care practitioners are excluded, and any agreement that doesn’t meet the Act’s requirements falls back to the ordinary statute, which still requires that non-compete agreements must be reasonable to be enforced.
For employers with high-earning key personnel, it’s worth a non-compete agreement review to bring existing agreements under the new law, and any covered employee should read the terms of a non-compete carefully before signing.
Protect Your Business Interests
A sound non-compete agreement protects your business, but every one of the requirements above has to be met for it to be enforceable. Enforceability is decided on the language, and an agreement drafted from a template usually misses at least one requirement. As a non-compete agreements attorney who helps employers enforce a non-compete agreement and helps business buyers do the same, Legal Counsel, P.A. reviews existing agreements, redrafts the ones that won’t hold, and takes the ones that will to court when needed.
We also represent business owners who are accused of violating a non-compete agreement they signed when they sold or left a company, so we know both sides of these cases.
If an ex-employee’s violation has cost your business customers or revenue, or the prior owner is competing with the business you bought, you may be entitled to an injunction, damages and fees, and we’ll tell you honestly which of those is realistic.
Why Work With Legal Counsel, P.A.
Non-compete cases move fast, because the damage compounds every week an ex-employee is working the customer list for a new employer. Our law office is built for that: a business practice that drafts the agreements and a litigation practice that takes them to court, in one office. Michele Diglio-Benkiran has practiced business and real estate law since 1999, and Richard Sierra is a commercial litigation and bankruptcy lawyer with more than three decades of experience.
Results matter here, and speed is part of the result. We offer a free consultation, and pay later options are available for clients who qualify.
Serving Orlando and Central Florida Employers
We handle restrictive covenant cases for businesses throughout Orlando and Orange County, and across Central Florida from our Winter Garden, Orlando and Seminole offices. Injunction actions for Orlando employers are typically filed in the Circuit Civil Division of the Ninth Judicial Circuit at the Orange County Courthouse. Non-compete work is part of our broader business litigation practice.
