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.

Contact Us

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.

Non-Compete Agreements in Virginia

By John V. Berry, Esq.,

Northern Virginia, given it’s proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large.

What is a Non-Compete Agreement?

A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area.

What Types of Issues Arise with Respect to Non-Compete Agreements in Virginia

Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored that they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.

Keeping in mind that these types of non-compete agreements must be drawn narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment.

Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts.  It is important for an employee to understand their obligations as well.

Obtain Legal Advice About Non-Compete Agreements

When entering into a non-compete agreement or when questions arise as a result of the non-compete agreement it is very important to seek counsel before signing this type of agreement or when questions of enforcement arise. Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at for legal advice and consultation in such matters.  Please also visit and like us on Facebook at

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