Florida Senate - 2025 SB 922
By Senator Leek
7-00626A-25 2025922__
1 A bill to be entitled
2 An act relating to employment agreements; creating
3 part I of ch. 542, F.S., entitled “The Florida
4 Antitrust Act of 1980”; creating part II of ch. 542,
5 F.S., entitled “The Florida Trade Secret Protection
6 Act”; creating s. 542.41, F.S.; providing a short
7 title; creating s. 542.42, F.S.; providing legislative
8 findings; creating s. 542.43, F.S.; defining terms;
9 creating s. 542.44, F.S.; providing applicability;
10 providing that certain covered garden leave agreements
11 are not a restraint of trade or an attempt to
12 monopolize trade or commerce; providing notice
13 requirements for covered garden leave agreements;
14 providing that a covered employer may waive any
15 portion of such notice requirements by providing a
16 specified amount of advance written notice to the
17 covered employee; providing that covered garden leave
18 agreements do not affect other agreements; requiring a
19 court to enter a preliminary injunction to stop
20 covered employees, businesses, entities, or
21 individuals if a breach of a covered garden leave
22 agreement is alleged; authorizing the court to modify
23 such an injunction if a covered employee, business,
24 entity, or individual establishes certain information
25 by clear and convincing evidence; requiring that
26 certain information be provided to the court under
27 seal; providing that a prevailing covered employer is
28 entitled to recover all available monetary damages for
29 all available claims; providing that a prevailing
30 party is entitled to reasonable attorney fees and
31 costs; authorizing a covered employer to reduce the
32 salary or benefits of a covered employee if he or she
33 engages in gross misconduct; providing that such a
34 reduction is not a breach of the covered garden leave
35 agreement; creating s. 542.45, F.S.; providing
36 applicability; providing that certain covered
37 noncompete agreements are not a restraint of trade or
38 an attempt to monopolize trade or commerce; providing
39 notice requirements for covered noncompete agreements;
40 providing that covered noncompete agreements do not
41 affect other agreements; requiring a court to enter a
42 preliminary injunction to stop covered employees,
43 businesses, entities, or individuals if a breach of a
44 covered noncompete agreement is alleged; authorizing
45 the court to modify such an injunction if a covered
46 employee, business, entity, or individual establishes
47 certain information by clear and convincing evidence;
48 requiring that certain information be provided to the
49 court under seal; providing that a prevailing covered
50 employer is entitled to recover all available monetary
51 damages for all available claims; providing that a
52 prevailing party is entitled to reasonable attorney
53 fees and costs; authorizing a covered employer to
54 reduce the salary or benefits of a covered employee if
55 he or she engages in gross misconduct; providing that
56 such a reduction is not a breach of the covered
57 noncompete agreement; providing construction regarding
58 a restrictive covenant that does not meet the
59 definition of a covered garden leave agreement or a
60 covered noncompete agreement; providing an effective
61 date.
62
63 Be It Enacted by the Legislature of the State of Florida:
64
65 Section 1. Part I of chapter 542, Florida Statutes,
66 consisting of ss. 542.15-542.36, Florida Statutes, is created
67 and entitled “The Florida Antitrust Act of 1980.”
68 Section 2. Part II of chapter 542, Florida Statutes,
69 consisting of ss. 542.41-542.45, Florida Statutes, is created
70 and entitled “The Florida Trade Secret Protection Act.”
71 542.41 Short title.—This part may be cited as “The Florida
72 Trade Secret Protection Act.”
73 542.42 Legislative findings.—The Legislature finds that a
74 proper and legitimate state interest is served by enforcing
75 strong legal protections in contracts between employers and
76 contracted personnel which encourage optimal levels of
77 information sharing and training and development. The
78 Legislature further finds that alternative means of protecting
79 confidential information and client relationships, such as
80 nondisclosure agreements, fixed-duration term contracts, and
81 nonsolicitation clauses in employment contracts, are inadequate
82 to protect against the significant global risks faced by
83 companies in this state. The Legislature further finds that
84 predictability in the enforcement of contracts described in this
85 part encourages investment in this state. Therefore, the
86 Legislature determines and declares that this part fulfills an
87 important state interest.
88 542.43 Definitions.—For the purposes of this part, the
89 term:
90 (1) “Annual mean wage of employees in Florida” or “annual
91 mean wage” means the most recent annual mean wage as calculated
92 by the United States Department of Labor Bureau of Labor
93 Statistics, or its successor calculation, for all occupations in
94 this state.
95 (2) “Benefit” means access to health insurance, life
96 insurance, or disability insurance that is the same as or
97 similar to the insurance that a covered employee had access to
98 and at the same cost to that employee during the month before
99 the commencement of his or her notice period.
100 (3) “Covered employee” means an employee or individual
101 contractor who earns or is reasonably expected to earn a salary
102 greater than twice the annual mean wage, or who has access to
103 his or her employer’s or client’s confidential information or
104 customer relationships. A court must presume that an employee or
105 individual contractor has access to confidential information or
106 customer relationships if the employee or individual contractor
107 acknowledges the access or receipt of such access in writing.
108 The term does not include a person classified as a medical
109 professional as defined in s. 1006.0626.
110 (4) “Covered employer” means an entity or individual who
111 employs or engages a covered employee.
112 (5) “Covered garden leave agreement” means a written
113 agreement, or part of a written agreement, between a covered
114 employee and covered employer in which:
115 (a) The covered employee and covered employer agree to up
116 to, but no more than, 4 years of advance, express notice before
117 terminating the employment or contractor relationship;
118 (b) The covered employee agrees not to resign before the
119 end of such notice period; and
120 (c) The covered employer agrees to retain the covered
121 employee for the duration of such notice period and to continue
122 paying the covered employee the same salary and providing the
123 same benefits that the covered employee received from the
124 covered employer in the last month before the commencement of
125 the notice period. The covered employer is not obligated to
126 provide discretionary incentive compensation or benefits or have
127 the covered employee continue performing any work during the
128 notice period.
129 (6) “Covered noncompete agreement” means a written
130 agreement, or a portion of a written agreement, between a
131 covered employee and a covered employer in which, for a period
132 not to exceed 4 years and within a specified geographic area,
133 which may be global in scope, the covered employee agrees not to
134 assume a role with or for another business, entity, or
135 individual:
136 (a) In which the covered employee would provide services
137 similar to the services provided to the covered employer during
138 the 3 years preceding the noncompete period; or
139 (b) In which it is reasonably likely the covered employee
140 would use the confidential information or customer relationships
141 of the covered employer.
142 (7) “Noncompete period” means the time from the covered
143 employee’s termination of employment through the end of the
144 agreed-upon postemployment period of noncompetition as set forth
145 in the covered noncompete agreement.
146 (8) “Notice period” means the date from the covered
147 employee’s or covered employer’s written notice of intent to
148 terminate the covered employee’s employment through the date of
149 termination as set forth in a covered garden leave agreement.
150 (9) “Primary place of work” means the location where the
151 covered employee spends more work time than any other single
152 workplace.
153 (10) “Salary” means the base compensation, calculated on an
154 annualized basis, which a covered employer pays a covered
155 employee, including a base wage, a salary, a professional fee,
156 or other compensation for personal services, and the fair market
157 value of any benefit other than cash. Salary does not include
158 health care benefits, severance pay, retirement benefits,
159 expense reimbursement, distribution of earnings and profits not
160 included as compensation for personal services, discretionary
161 incentives or awards, or anticipated but indeterminable
162 compensation, including tips, bonuses, or commissions.
163 542.44 Covered garden leave agreement.—
164 (1) APPLICABILITY.—This section applies to:
165 (a) A covered garden leave agreement with a covered
166 employee who maintains a primary place of work in this state,
167 regardless of any applicable choice of law provisions; or
168 (b) A covered employee who is subject to a covered garden
169 leave agreement with a covered employer with a significant nexus
170 to this state.
171
172 If any provision of this section is in conflict with any other
173 law, the provisions of this section shall govern.
174 (2) RESTRAINT OF TRADE.—A covered garden leave agreement
175 does not violate public policy as a restraint of trade, as
176 described in s. 542.18, or an attempt to monopolize trade or
177 commerce in this state, as described in s. 542.19, and is fully
178 enforceable according to its terms, provided that:
179 (a) A covered employee is provided proper notice of the
180 covered garden agreement before its execution, as described in
181 subsection (3); and
182 (b) The covered garden leave agreement provides that:
183 1. After the first 90 days of the notice period, the
184 covered employee does not have to provide services to the
185 covered employer;
186 2. The covered employee may engage in nonwork activities at
187 any time, including during normal business hours, during the
188 remainder of the notice period; and
189 3. The covered employee may, with the permission of the
190 covered employer, work for another employer while still employed
191 by the covered employer during the remainder of the notice
192 period.
193 (3) NOTICE; WAIVER OF NOTICE.—Proper notice of a covered
194 garden leave agreement requires:
195 (a) For a prospective covered employee, at least 7 days
196 before a prospective covered employee’s offer of employment
197 expires.
198 (b) For a current covered employee, at least 7 days before
199 an offer to enter into a covered garden leave agreement expires.
200
201 In either case, a prospective or current covered employee must
202 acknowledge in writing that he or she was expressly advised of
203 the right to seek legal counsel before the execution of the
204 covered garden leave agreement.
205 (c) The covered employer may, without breach of the covered
206 garden leave agreement, waive any portion of this subsection by
207 providing at least 30 days’ advance notice in writing to the
208 covered employee.
209 (4) OTHER AGREEMENTS.—This section does not affect or limit
210 the enforceability of any other employment agreement or any
211 other agreement.
212 (5) BREACH OF A COVERED GARDEN LEAVE AGREEMENT; REMEDIES.—
213 (a) Upon application by a covered employer, a court must
214 preliminarily enjoin a covered employee from providing services
215 to any business, entity, or individual other than the covered
216 employer during the notice period. The court may modify or
217 dissolve the injunction only if the covered employee establishes
218 by clear and convincing evidence that:
219 1. The covered employee will not perform, during the notice
220 period, any work similar to the services provided to the covered
221 employer during the 3-year period preceding the commencement of
222 the notice period, or use confidential information or customer
223 relationships of the covered employer; or
224 2. The covered employer has failed to pay or provide the
225 salary and benefits provided for in the covered garden leave
226 agreement during the notice period and has had a reasonable
227 opportunity to cure the failure.
228 (b) Upon application by a covered employer, a court must
229 preliminarily enjoin a business, an entity, or an individual
230 from engaging a covered employee during the covered employee’s
231 notice period. The court may modify or dissolve the injunction
232 only if the business, entity, or individual establishes by clear
233 and convincing evidence, based on public or other
234 nonconfidential information, that:
235 1. The covered employee will not provide any services
236 similar to the services provided to the covered employer during
237 the 3-year period preceding the commencement of the notice
238 period, or use confidential information or customer
239 relationships of the covered employer; or
240 2. The business or individual seeking to employ or engage
241 the covered employee is not engaged in, and is not planning or
242 preparing to engage in, any business activity similar to those
243 engaged in by the covered employer during the notice period.
244
245 Any information filed with the court which the covered employer
246 deems to be confidential must be filed under seal to protect
247 trade secrets or avoid substantial injury.
248 (c) The injunctive relief provided under this section is
249 not an exclusive remedy, and a prevailing covered employer is
250 entitled to recover all available monetary damages for all
251 available claims.
252 (d) In any action to enforce this section, the prevailing
253 party is entitled to reasonable attorney fees and costs.
254 (e) If the covered employee engages in gross misconduct
255 against the covered employer, the covered employer may reduce
256 the salary or benefits of the covered employee or take other
257 appropriate action during the notice period, which reduction or
258 other action may not be considered a breach of the covered
259 garden leave agreement.
260 542.45 Covered noncompete agreements.—
261 (1) APPLICABILITY.—This section applies to:
262 (a) A covered noncompete agreement with a covered employee
263 who maintains a primary place of work in this state, regardless
264 of any applicable choice of law provisions; or
265 (b) A covered employee who is subject to a covered
266 noncompete agreement with a covered employer with a significant
267 nexus to this state.
268
269 In either case, if any provision of this section is in conflict
270 with any other law, the provisions of this section govern.
271 (2) RESTRAINT OF TRADE.—A covered noncompete agreement does
272 not violate public policy as a restraint of trade, as described
273 in s. 542.18, or an attempt to monopolize trade or commerce in
274 this state, as described in s. 542.19, and is fully enforceable
275 according to its terms, provided that:
276 (a) A covered employee is provided proper notice of the
277 covered noncompete agreement before its execution, as described
278 in subsection (3); and
279 (b) A covered noncompete agreement provides that the
280 noncompete period is reduced day-for-day by any nonworking
281 portion of the notice period, pursuant to a covered garden leave
282 agreement between the covered employee and the covered employer,
283 if applicable.
284 (3) NOTICE; WAIVER OF NOTICE.—Proper notice of a covered
285 noncompete agreement requires:
286 (a) For a prospective covered employee, at least 7 days
287 before a prospective covered employee’s offer of employment
288 expires.
289 (b) For a current covered employee, at least 7 days before
290 an offer to enter into a covered noncompete agreement expires.
291
292 In either case, a prospective or current covered employee must
293 acknowledge in writing that he or she was expressly advised of
294 the right to seek legal counsel before the execution of the
295 covered noncompete agreement.
296 (4) OTHER AGREEMENTS.—This section does not affect or limit
297 the enforceability of any other employment agreement or any
298 other agreement.
299 (5) BREACH OF COVERED NONCOMPETE AGREEMENT; REMEDIES.—
300 (a) Upon application by a covered employer, a court must
301 preliminarily enjoin a covered employee from providing services
302 to any business, entity, or individual other than the covered
303 employer during the noncompete period. The court may modify or
304 dissolve the injunction only if the covered employee establishes
305 by clear and convincing evidence that:
306 1. The covered employee will not perform, during the
307 noncompete period, any work similar to the services provided to
308 the covered employer during the 3-year period preceding the
309 commencement of the noncompete period, or use confidential
310 information or customer relationships of the covered employer;
311 or
312 2. The covered employer has failed to pay or provide the
313 salary and benefits provided for in the covered noncompete
314 agreement during the noncompete period and has had a reasonable
315 opportunity to cure the failure.
316 (b) Upon application by a covered employer, a court must
317 preliminarily enjoin a business, an entity, or an individual
318 from engaging a covered employee during the covered employee’s
319 noncompete period. The court may modify or dissolve the
320 injunction only if the business, entity, or individual
321 establishes by clear and convincing evidence, based on public or
322 other nonconfidential information, that:
323 1. The covered employee will not provide any services
324 similar to the services provided to the covered employer during
325 the 3-year period preceding the commencement of the noncompete
326 period, or use confidential information or customer
327 relationships of the covered employer; or
328 2. The business or individual seeking to employ or engage
329 the covered employee is not engaged in, and is not planning or
330 preparing to engage in, any business activity similar to those
331 engaged in by the covered employer during the noncompete period.
332
333 Any information filed with the court which the covered employer
334 deems to be confidential must be filed under seal to protect
335 trade secrets or avoid substantial injury.
336 (c) The injunctive relief provided in this section is not
337 an exclusive remedy, and a prevailing covered employer is
338 entitled to recover all available monetary damages for all
339 available claims.
340 (d) In any action to enforce this section, the prevailing
341 party is entitled to reasonable attorney fees and costs.
342 (e) If the covered employee engages in gross misconduct
343 against the covered employer, the covered employer may reduce
344 the salary or benefits of the covered employee or take other
345 appropriate action during the noncompete period, which reduction
346 or other action may not be considered a breach of the covered
347 noncompete agreement.
348
349 Any action regarding a restrictive covenant that does not meet
350 the definition set forth in this section of a covered garden
351 leave agreement or a covered noncompete agreement is governed by
352 s. 542.335.
353 Section 3. This act shall take effect July 1, 2025.