Florida Senate - 2025                        COMMITTEE AMENDMENT
       Bill No. SB 922
       
       
       
       
       
       
                                Ì445784LÎ445784                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/17/2025           .                                
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       The Committee on Commerce and Tourism (Leek) recommended the
       following:
       
    1         Senate Amendment
    2  
    3         Delete lines 126 - 284
    4  and insert:
    5  provide discretionary incentive compensation or discretionary
    6  benefits or have the covered employee continue performing any
    7  work during the notice period.
    8         (6) “Covered noncompete agreement” means a written
    9  agreement, or a portion of a written agreement, between a
   10  covered employee and a covered employer in which, for a period
   11  not to exceed 4 years and within a specified geographic area,
   12  which may be global in scope, the covered employee agrees not to
   13  assume a role with or for another business, entity, or
   14  individual:
   15         (a) In which the covered employee would provide services
   16  similar to the services provided to the covered employer during
   17  the 3 years preceding the noncompete period; or
   18         (b) In which it is reasonably likely the covered employee
   19  would use the confidential information or customer relationships
   20  of the covered employer.
   21         (7) “Noncompete period” means the time from the covered
   22  employee’s termination of employment through the end of the
   23  agreed-upon postemployment period of noncompetition as set forth
   24  in the covered noncompete agreement.
   25         (8) “Notice period” means the date from the covered
   26  employee’s or covered employer’s written notice of intent to
   27  terminate the covered employee’s employment through the date of
   28  termination as set forth in a covered garden leave agreement.
   29         (9) “Primary place of work” means the location where the
   30  covered employee spends more work time than any other single
   31  workplace.
   32         (10) “Salary” means the base compensation, calculated on an
   33  annualized basis, which a covered employer pays a covered
   34  employee, including a base wage, a salary, a professional fee,
   35  or other compensation for personal services, and the fair market
   36  value of any benefit other than cash. Salary does not include
   37  health care benefits, severance pay, retirement benefits,
   38  expense reimbursement, distribution of earnings and profits not
   39  included as compensation for personal services, discretionary
   40  incentives or awards, or anticipated but indeterminable
   41  compensation, including tips, bonuses, or commissions.
   42         542.44 Covered garden leave agreement.—
   43         (1) APPLICABILITY.—This section applies to:
   44         (a) A covered garden leave agreement with a covered
   45  employee who maintains a primary place of work in this state,
   46  regardless of any applicable choice of law provisions; or
   47         (b) A covered employee who is subject to a covered garden
   48  leave agreement with a covered employer with a significant nexus
   49  to this state.
   50  
   51  If any provision of this section is in conflict with any other
   52  law, the provisions of this section shall govern.
   53         (2) RESTRAINT OF TRADE.—A covered garden leave agreement
   54  does not violate public policy as a restraint of trade, as
   55  described in s. 542.18, or an attempt to monopolize trade or
   56  commerce in this state, as described in s. 542.19, and is fully
   57  enforceable according to its terms, provided that:
   58         (a) A covered employee is provided proper notice of the
   59  covered garden leave agreement before its execution, as
   60  described in subsection (3); and
   61         (b) The covered garden leave agreement provides that:
   62         1. After the first 90 days of the notice period, the
   63  covered employee does not have to provide services to the
   64  covered employer;
   65         2. The covered employee may engage in nonwork activities at
   66  any time, including during normal business hours, during the
   67  remainder of the notice period; and
   68         3. The covered employee may, with the permission of the
   69  covered employer, work for another employer while still employed
   70  by the covered employer during the remainder of the notice
   71  period.
   72         (3) NOTICE; WAIVER OF NOTICE.—
   73         (a)Proper notice of a covered garden leave agreement
   74  requires:
   75         1. For a prospective covered employee, at least 7 days
   76  before a prospective covered employee’s offer of employment
   77  expires.
   78         2. For a current covered employee, at least 7 days before
   79  an offer to enter into a covered garden leave agreement expires.
   80         (b)A prospective or current covered employee must
   81  acknowledge in writing that he or she was expressly advised of
   82  the right to seek legal counsel before the execution of the
   83  covered garden leave agreement.
   84         (c) The covered employer may, without breach of the covered
   85  garden leave agreement, waive any portion of this subsection by
   86  providing at least 30 days’ advance notice in writing to the
   87  covered employee.
   88         (4) OTHER AGREEMENTS.—This section does not affect or limit
   89  the enforceability of any other employment agreement or any
   90  other agreement.
   91         (5) BREACH OF A COVERED GARDEN LEAVE AGREEMENT; REMEDIES.—
   92         (a) Upon application by a covered employer, a court must
   93  preliminarily enjoin a covered employee from providing services
   94  to any business, entity, or individual other than the covered
   95  employer during the notice period. The court may modify or
   96  dissolve the injunction only if the covered employee establishes
   97  by clear and convincing evidence that:
   98         1. The covered employee will not perform, during the notice
   99  period, any work similar to the services provided to the covered
  100  employer during the 3-year period preceding the commencement of
  101  the notice period, or use confidential information or customer
  102  relationships of the covered employer; or
  103         2. The covered employer has failed to pay or provide the
  104  salary and benefits provided for in the covered garden leave
  105  agreement during the notice period and has had a reasonable
  106  opportunity to cure the failure.
  107         (b) Upon application by a covered employer, a court must
  108  preliminarily enjoin a business, an entity, or an individual
  109  from engaging a covered employee during the covered employee’s
  110  notice period. The court may modify or dissolve the injunction
  111  only if the business, entity, or individual establishes by clear
  112  and convincing evidence, based on public or other
  113  nonconfidential information, that:
  114         1. The covered employee will not provide any services
  115  similar to the services provided to the covered employer during
  116  the 3-year period preceding the commencement of the notice
  117  period, or use confidential information or customer
  118  relationships of the covered employer; or
  119         2. The business or individual seeking to employ or engage
  120  the covered employee is not engaged in, and is not planning or
  121  preparing to engage in, any business activity similar to those
  122  engaged in by the covered employer during the notice period.
  123  
  124  Any information filed with the court which the covered employer
  125  deems to be confidential must be filed under seal to protect
  126  trade secrets or avoid substantial injury.
  127         (c) The injunctive relief provided under this section is
  128  not an exclusive remedy, and a prevailing covered employer is
  129  entitled to recover all available monetary damages for all
  130  available claims.
  131         (d) In any action to enforce this section, the prevailing
  132  party is entitled to reasonable attorney fees and costs.
  133         (e) If the covered employee engages in gross misconduct
  134  against the covered employer, the covered employer may reduce
  135  the salary or benefits of the covered employee or take other
  136  appropriate action during the notice period, which reduction or
  137  other action may not be considered a breach of the covered
  138  garden leave agreement.
  139         542.45 Covered noncompete agreements.—
  140         (1) APPLICABILITY.—This section applies to:
  141         (a) A covered noncompete agreement with a covered employee
  142  who maintains a primary place of work in this state, regardless
  143  of any applicable choice of law provisions; or
  144         (b) A covered employee who is subject to a covered
  145  noncompete agreement with a covered employer with a significant
  146  nexus to this state.
  147  
  148  In either case, if any provision of this section is in conflict
  149  with any other law, the provisions of this section govern.
  150         (2) RESTRAINT OF TRADE.—A covered noncompete agreement does
  151  not violate public policy as a restraint of trade, as described
  152  in s. 542.18, or an attempt to monopolize trade or commerce in
  153  this state, as described in s. 542.19, and is fully enforceable
  154  according to its terms, provided that:
  155         (a) A covered employee is provided proper notice of the
  156  covered noncompete agreement before its execution, as described
  157  in subsection (3); and
  158         (b) A covered noncompete agreement provides that the
  159  noncompete period is reduced day-for-day by any nonworking
  160  portion of the notice period, pursuant to a covered garden leave
  161  agreement between the covered employee and the covered employer,
  162  if applicable.
  163         (3) NOTICE.—Proper notice of a covered