Severance Agreements in Virginia

By Kimberly H. Berry, Esq.,

In Virginia, most employees are considered “at will,” which generally means they can be terminated or resign at any time. Even if they are “at will,” when an employee’s employment ends, an employer may offer severance to an employee in exchange for the employee’s waiver of his / her rights, including the right to file suit for any work-related issues. In Virginia, in the absence of an employment contract, an employer usually has no obligation to provide an employee severance pay. If severance pay is offered, an employer will almost always provide the employee with a severance agreement. It is important to obtain legal advice before signing such an agreement.

This article discusses severance agreements in the Commonwealth of Virginia and some issues associated with them for employees.

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Non-Compete Agreements in Virginia

Non-Compete Agreements in Virginia

Non-compete agreements in the Commonwealth of Virginia have undergone a bit of a change since 2020. We represent employees in non-compete agreements with their former or soon-to-be-former employers.  A non-compete agreement is simply a contract where an employee or former employee agrees to a clause that bars competition with a former employer. If an individual violates the non-compete agreement or clause, there can be consequences or liability.

As a result, it is very important to obtain legal advice before signing a non-compete agreement if an employee is facing termination from employment or a decision to leave an employer.  We assist Virginia employees and executives in evaluating non-compete issues and in attempting to resolve them.  

What is a Non-Compete Agreement?

A non-compete agreement is a contract where an employee agrees to give up a right that they would otherwise have, in exchange for something from an employer. Quite often an employer ties a non-compete agreement or clause into severance payments.  

The general purpose of a non-compete agreement is to ensure that a former employee does not use the knowledge that they have gained with an employer and then later attempt to compete against them using this knowledge.    

Virginia Requirements for Non-Compete Agreements

In general, in order to be valid, a non-compete agreement in Virginia must be reasonable. An agreement that restrains competition, like a non-compete agreement “must be evaluated on its own merits, balancing the provisions of the contract with the circumstances of the businesses and employees involved.” Omniplex World Servs. Corp. v. US Investigations Servs, 618 S.E.2d 340, 342 (2005).

In Virginia, in order to be enforceable, a non-compete agreement must meet the following 3-part test, according to the Virginia Supreme Court. Under this test, the employer bears the burden to show that the non-compete agreement or clause is:

  1. no greater than necessary to protect a legitimate business interest;
  2. is not unduly harsh or oppressive in curtailing an employee’s ability to earn a livelihood; and
  3. is reasonable in light of sound public policy.

Modern Env’Ts v. Stinnett,  561 S.E.2d 694, 695 (Va. 2002);  Assurance Data v. Malyevac, 747 S.E.2d 804, 808 (Va. 2013); Gordon v. Blue Mt. Therapy, 2021 U.S. Dist. LEXIS 105432 (W.D. Va. June 4, 2021).  

Determining the enforceability of such an agreement “requires consideration of the agreement in terms of function, geographic scope, and duration, with these factors considered together.” Home Paramount Pest Control Cos., Inc. v. Shaffer, 718 S.E.2d 762, 764 (Va. 2011).

It is important to keep in mind that the courts when applying these tests in Virginia have become more employee-friendly in recent years. Non-compete agreements that are too vague or cumbersome may be invalidated. Courts are more likely to enforce non-compete agreements that are reasonable, have a limited geographic scope, and are precise in their terms. 

Virginia Recently Barred Non-Compete Agreements for Low-Wage Workers

Virginia has also added a new wrinkle to protect low-wage workers from non-compete agreements.  As of July 1, 2020, Virginia now prohibits employers from placing non-compete restrictions on low-wage employees. This law only applies to non-compete provisions that came into effect on or after July 1, 2020. See Virginia Code § 40.1-28.7:8.

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When non-compete issues arise, it is important to get legal advice early and not wait until issues develop. These types of agreements, if already in effect, may still be renegotiated. If you are employed in Virginia and (1) have signed a non-compete agreement or (2) are considering signing an agreement to not compete, you should have the advice of a qualified Virginia employment lawyer. If you are in need of advice regarding non-compete agreements or clauses, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

Virginia Approves Pro-Employee Overtime Law

By John V. Berry,

Virginia did not have its own overtime laws until recent approval of the Virginia Overtime Wage Act (“VOWA”), in Virginia House Bill 2063, signed on March 30, 2021 by Governor Ralph Northam. Before VOWA, those that sought unpaid overtime compensation had to previously rely on federal law through the Fair Labor Standards Act, known as FLSA.  While VOWA is similar to the FLSA, it increases costs and penalties (both civil and criminal) for Virginia employers that don’t pay required overtime to employees in a timely manner.

Similar to the FLSA, Virginia’s new overtime law requires payment of time and a half at an employee’s regular rate for hours worked in excess of 40 hours in a workweek.  But while the VOWA largely is similar to the FLSA, significant differences are likely to result in new liabilities for Virginia employers and higher damages for overtime violations for employees in Virginia that have not received their overtime pay. 

VOWA will result in a change in strategy for lawyers seeking unpaid overtime for employees. VOWA establishes a new formula for calculations for salaried employees in Virginia which will result in larger recoveries in overtime cases. VOWA will also yield larger recoveries for misclassified workers. While the FLSA has a 2-year statute of limitations to bring overtime claims, unless they are willful (intentional), VOWA extends this to 3 years. This will clearly bring greater liability to employers.

Finally, VOWA presumes an employees’ ability to obtain double damages for all overtime violations.  FLSA permits employers to argue, as a defense, that they acted in good faith in response to such claims; VOWA takes this defense away.  Under VOWA, all overtime wage violations are subject to double damages (in addition to pre-judgment interest of 8% per year). Finally, VOWA goes further and permits triple damages for employees where an employer had actual knowledge that it failed to pay the overtime wages due and acted in deliberate ignorance or reckless disregard as to whether it was paying all overtime wages owed.

VOWA also adds criminal provisions against employers.  Employers can be now found guilty of a Class 1 misdemeanor if the value of the overtime wages earned and not paid is less than $10,000. If the amount unpaid is over $10,000, the employer can be found liable for a Class 6 Felony charge.  A felony charge can also apply no matter the amount of wages at issue for a second conviction. There is a lot to sort out with the new VOWA overtime legislation in Virginia, but employees are going to have much stronger state claims for overtime in the future.  

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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

Virginia to Allow Unions

By John V. Berry,

Virginia finally has passed new legislation that allows for public sector unions that can bargain for employee rights, their conditions of employment and enter into collective bargaining agreements. On May 1, 2021, Virginia’s new law, Virginia Code § 40.1-57.2, will take effect. This law completely changes the union movement in Virginia for public sector employees. Prior to the new law, counties, cities or towns were not allowed to recognize or negotiate with labor unions or associations representing their public sector employees. This new legislation will affect all types of public sector employees. Under the new law, the county or city has to authorize labor unions in their jurisdiction for them to exist.   

The New Union Labor Law in Virginia

The new Virginia law reads as follows:

VA Code § 40.1-57.2. (Effective May 1, 2021) Collective bargaining.

A. No state, county, city, town, or like governmental officer, agent, or governing body is vested with or possesses any authority to recognize any labor union or other employee association as a bargaining agent of any public officers or employees, or to collectively bargain or enter into any collective bargaining contract with any such union or association or its agents with respect to any matter relating to them or their employment or service unless, in the case of a county, city, or town, such authority is provided for or permitted by a local ordinance or by a resolution. Any such ordinance or resolution shall provide for procedures for the certification and decertification of exclusive bargaining representatives, including reasonable public notice and opportunity for labor organizations to intervene in the process for designating an exclusive representative of a bargaining unit. As used in this section, “county, city, or town” includes any local school board, and “public officers or employees” includes employees of a local school board.

What the New Law Means

Collective bargaining for public sector employees had previously existed in a number of Virginia jurisdictions until a 1977 Virginia Supreme Court ruling in Commonwealth v. Arlington County, 217 Va. 558 (1977) which prohibited local governments from collective bargaining with unions. It appears that Fairfax, Arlington and Loudoun Counties are already studying the effects that the unionization will have. Additionally, in preparation for the new legislation Alexandria has proposed a public employees collective bargaining ordinance, including police, fire, labor and trades and general government employees. In general, unions will not be available for senior or managerial-level employees

The new Virginia law will allow counties, cities and towns the ability to adopt ordinances recognizing labor unions and enter into collective bargaining agreements with them. The new law is not mandatory, but allows localities the ability to permit employees to have unions. If such union interest arises, counties, cities, or towns must vote to adopt or not adopt an ordinance authorizing them within 120 days of receiving certification from a majority of public employees in an appropriate bargaining unit. The legislation will ultimately enable police officers, teachers, fire personnel and other types of government employees in Virginia to unionize.

The legislation shows that the days of Virginia is the first step in what will be evolving legislation over the coming years further broadening the scope of labor unions in this state. 

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If you are in need of employment law legal representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

Virginia Passes Legislation to Allow Employees to Sue for Unpaid Wages and Triple Damages

By John V. Berry,

New legislation has been passed in Virginia to protect employees from employers that do not pay wages that are owed.  If Virginia House Bill 123 is either signed by Governor Ralph Northam or not acted upon by April 11, 2020, employees will have new rights to pursue unpaid wages. Virginia House Bill 123 has been passed by both the Virginia House and Senate. The new law would create a new right to sue in the collection of unpaid wages in Virginia. Virginia House Bill 123 also allow employees the right to seek triple damages and other remedies.

New Employer Damages and Penalties

Virginia House Bill 123 enables Virginia employees to bring suit against employers that fail to pay wages and also allows them to recover their wages owed, plus 8% interest from the date that the wages were due. In addition, Employees may awarded triple damages (three times the amount of their unpaid wages), attorney’s fees and/or other costs if a court finds that the employer knowingly failed to pay the wages that were due. There is also a $1,000 civil penalty against the employe for a violation.

Hypothetical: Under the new law, for example, if an employer fails to pay an employee $2,000 that is earned, they could be liable for that amount, plus 8%, potentially 3 times the wages that were not paid and attorney’s fees incurred by the employee. The $2,000 that was unpaid could easily become a judgment against the employer for $5,000 to $10,000 by the time damages, attorney’s fees and civil penalties are included. 

Potential Employer Criminal Penalties

In addition to civil penalties, there are also criminal law penalties in the new legislation. Employers can be found guilty of a misdemeanor, punishable by up to 12 months in jail, if the wages owed are less than $10,000. Employers are to be considered guilty of a felony, punishable by a prison term of up to five years, if the value of unpaid wages is at least $10,000 or if the employer previously has a prior conviction involving a similar wage issue.  Criminal liability now only applies if the non-payment of wages was willful with the intent to defraud. If Virginia House Bill 123 is signed or otherwise allowed to become law, it would be effective on July 1, 2020.


If you are in need of employment law representation or advice, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

New Employment Laws for the Virginia Legislature to Consider


By John V. Berry, Esq.,

With the change in control of the Virginia House of Delegates and State Senate in November of 2019, there is an opportunity to modernize the employment laws in the Commonwealth of Virginia. While there are a number of other suggestions out there already regarding the raising wages, right to work laws and other wage-related issues, I think that there are also some less contentious fixes that could offer employees improved protections.  The following 3 suggestions would improve the workplace for Virginia employees.

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States Start to Change Marijuana Employment Testing Laws – Is Virginia Next?

By John V. Berry, Esq.,

Some states are moving to not only legalize marijuana but to also bar drug screening in employment for its use. For example, Nevada is one of these states. Beginning next year, most employers in the State of Nevada will not be able to turn down a job applicant solely for failing a marijuana drug test. This is the result of new state law, Nevada Assembly Bill 132, which will become effective on January 1, 2020. There is some discussion that a similar law will also be coming to Colorado and a number of other jurisdictions soon. Other jurisdictions such as New York City, Maine and the District of Columbia have also enacted similar laws.

Drug Testing

Nevada’s New Marijuana Drug Testing Law

The new marijuana-related employment law will not bar employers from testing job applicants for marijuana usage, and it will not stop them from refusing to hire applicants that test positive for other drugs. There are some exceptions to the new law.
It does not apply to physicians, emergency medical technicians, firefighters or those that have job requirements involving driving and in positions which could adversely affect the safety of others. A copy of the new law can be found here. It is likely to be the first of many similar laws that are enacted in states that have legalized marijuana usage.

Virginia Still Criminalizes Marijuana Use – Change is Slow

While Nevada and other states have moved forward with decriminalizing marijuana usage and beginning to bar employment-related drug screening, Virginia still criminalizes marijuana usage. Furthermore, there is not yet a medical marijuana usage law in place.

Virginia employers remain able to terminate employees for testing positive for or using marijuana. Attorney General Mark Herring recently suggested changing these laws, which could be the start of a long process in Virginia. The first step in Virginia will be to decriminalize marijuana and then changes to employment law will ultimately follow.

Federal Marijuana Law – Change is Even Slower

Individuals should keep in mind that even as these states legalize certain drugs, these state laws have no effect on federal criminal drug laws barring usage. Furthermore, federal employees and security clearance applicants/holders are still barred and can be fired for marijuana usage.

I strongly believe that the federal government will likely change these laws in the next 5-10 years. For federal security clearance holders, marijuana usage will likely be reduced to an abuse standard, like with alcohol, but at present federal employees and security clearance holders can lose their security clearances with even one-time use in a state or jurisdiction that has legalized marijuana.


If you are in need of employment law representation in Virginia, please contact our office at 703-668-0070 or through our contact page to schedule a consultation. Please also visit and like us on Facebook or Twitter.

Whistleblower Claims for Virginia Employees

By John V. Berry, Esq.,

Our law firm represent private sector, county, city and state employees in Virginia who have been fired or disciplined at work in regards to their whistleblowing activities. Whistleblower cases are unique and present their own challenges. Employees are advised to seek counsel as early in the process as possible if they believe that they have been disciplined for whistleblowing. Additional rights apply to government employees, but this article focuses on private sector employees in Virginia.


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Reasonable Accommodation Process for Virginia Employees

By John V. Berry, Esq.,

Several Virginia employees have come to us to discuss the reasonable accommodation process when they develop a medical condition or disability that requires a change in their duties or other workplace adjustments in order for them to continue their employment. Our law firm represents private, federal, state, and county sector employees throughout the Commonwealth of Virginia in reasonable accommodation cases.

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Wrongful Termination Issues for Employees in Virginia

By John V. Berry, Esq.,

We often meet with individuals that believe that they have been wrongfully terminated from their employer in Virginia. When dealing with these types of employment issues, it is important to seek out the advice of a Virginia employment lawyer knowledgeable in these areas of law. This article discusses the rights and issues associated with wrongful termination for Virginia employees.

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