Two years of headlines about a federal ban left a lot of business owners convinced that non-competes are dead. They are not, and the employers who assumed otherwise stopped updating their agreements at exactly the wrong moment. The rules now differ sharply by state, and a restrictive covenant that reads well in Florida may be unenforceable across the river in New Jersey. Braslow Legal works with companies on both sides of that divide, and the recurring problem is the same: a template downloaded years ago, signed by everyone from the sales director to the receptionist, protecting nothing in particular.

Are non-competes still legal after the FTC rule was blocked?

Yes. The Federal Trade Commission’s rule banning most non-competes, issued in April 2024, was set aside nationwide by a federal court in Texas in Ryan LLC v. FTC in August 2024, before it ever took effect. The agency later abandoned its appeal and shifted to challenging individual agreements it considers abusive rather than banning the category.

Enforceability is back to being a question of state law, and that law is not uniform. California, Minnesota, Oklahoma, and North Dakota void employee non-competes almost entirely, while a dozen or more states impose wage thresholds below which one cannot be enforced. Those thresholds change legislatively most years, so a multistate employer running a single nationwide template almost certainly has unenforceable agreements somewhere in its workforce.

How long can a non-compete last in Florida?

Florida is among the more employer-friendly states, and its statute builds in duration presumptions. Under Fla. Stat. § 542.335, a restraint of six months or less against a former employee is presumed reasonable, and one longer than two years is presumed unreasonable. Agreements tied to the sale of a business get more room, with up to three years presumed reasonable.

The statute also requires a legitimate business interest, defined to include trade secrets, valuable confidential information, substantial relationships with specific customers, goodwill tied to a trade name or location, and specialized training. A covenant that exists only to suppress ordinary competition fails. Florida courts must modify an overbroad restraint rather than discard it, and cannot weigh the individual employee’s economic hardship.

The CHOICE Act, effective July 1, 2025, expanded these options by permitting garden leave arrangements and non-competes up to four years for employees earning more than twice the annual mean wage in the applicable county. It requires seven days’ advance notice to review the agreement, advises the right to counsel, and carves out health care practitioners. Confirm the current statutory text before drafting, since the framework is still being tested in court.

Does New Jersey treat non-competes the same way?

No. New Jersey has no non-compete statute and relies on a common law test drawn from Solari Industries v. Malady, asking whether the restraint protects a legitimate employer interest, imposes undue hardship on the employee, and harms the public.

That third element carries weight in health care, where a departing professional’s absence affects patient access. New Jersey courts will blue pencil an overbroad agreement rather than enforce it as written, and deny enforcement outright when the employer cannot articulate what it is protecting beyond competition. Bills restricting non-competes have been introduced in Trenton repeatedly without passing.

Why does a good NDA often outperform a non-compete?

Confidentiality agreements protect the thing employers actually care about, which is information, and they face far fewer state law restrictions than covenants that keep someone from earning a living.

A nondisclosure agreement, meaning a contract restricting the use and disclosure of defined categories of company information, pairs well with a non-solicitation clause covering customers and employees, and courts scrutinize those less harshly than outright competition bans. Draft with limits: a definition of confidential information broad enough to cover everything the employee ever saw reads as a disguised non-compete. Carve out general skills and publicly available information.

Two constraints apply regardless of state. Under the NLRB’s 2023 McLaren Macomb decision, confidentiality and non-disparagement terms broad enough to chill protected activity can be unlawful as to non-supervisory employees. And no NDA can bar an employee from reporting suspected violations to a government agency, a point the SEC has enforced under Rule 21F-17 with six-figure penalties.

What actually qualifies as a trade secret?

Information with independent economic value because it is not generally known, and that the owner takes reasonable steps to keep secret. Both halves matter, and the second is where cases are lost.

The Defend Trade Secrets Act of 2016 gives employers a federal claim with a three-year limitations period. It also contains a provision most companies miss: under 18 U.S.C. § 1833(b), any contract governing the use of trade secrets must include notice of the whistleblower immunity for confidential disclosures to government officials or attorneys. Leave it out and you forfeit exemplary damages and attorney’s fees against that employee. One paragraph preserves both.

Reasonable measures means access controls tied to job function, labeled documents, offboarding that revokes credentials the same day, and a security policy someone actually follows. Judges ask what the company did, not what its handbook said.

What should an employer do when a key employee resigns?

Move within the first week. Preserve the departing employee’s laptop and email rather than reissuing the machine, pull access logs for unusual downloads in the prior ninety days, and hold an exit interview where the employee signs an acknowledgment of their post-employment obligations. If the new employer is a competitor, a short letter to both parties documenting those obligations often ends the problem without litigation.

Restrictive covenants work when they are narrow, current, and matched to the state where the employee actually works. Tier them by role rather than giving everyone the same form. If your templates predate 2024, Braslow Legal can audit them against current Florida and New Jersey standards and rebuild what no longer holds. Start the conversation through the firm’s website.