Virginia Noncompete Agreement: What's Included and Enforceability

Quick Facts — Noncompete Agreement Lawyers

Is a Non-Compete Agreement Enforceable in Virginia?

Yes. In Virginia, non-compete agreements can be used by employers to protect their business from former employees under certain conditions. Under Virginia law, non-compete agreements cannot be enforced against the following types of employees:

  • Low wage employees
  • Attorneys
  • Interns
  • Students
  • Apprentices
  • Paid trainees

A low wage employee is any employee who makes less than the average weekly wage of the Commonwealth. This number is set by the Virginia Employment Commission and changes based upon industry and inflation.

How Long Does a Virginia Non-Compete Agreement Last?

Virginia doesn’t have a set duration for non-compete agreements. When determining if the duration of a non-compete agreement is reasonable, courts will look at the function of the agreement and the covered geographic area.

For example, a court ruled that a non-compete with a one-mile radius and a three year duration was reasonable. Another court ruled that a non-compete with a 60-mile radius and a one-year duration was reasonable.

How Do You Get Around a Non-Compete Agreement in Virginia?

If an employee wishes to get around a non-compete agreement in Virginia, they will have to prove that he agreement is violates one of the three requirements established by the Virginia courts.

These requirements are:

  1. The agreement can be no more restrictive than necessary to protect a legitimate business interest.
  2. The agreement cannot be overly harsh or oppressive on an employee.
  3. The agreement cannot negatively impact the public.

If an employee proves that ant of these rules has been violated, a court may rule that the contract is unenforceable.

What Voids a Virginia Non-Compete Agreement?

A Virginia non-compete agreement will be void if it was not entered into voluntarily. Any contract that is signed under duress, threat, coercion, or fraud will be deemed void and unenforceable.

Frequently Asked Questions

How do I hire a lawyer to draft a noncompete agreement in Virginia?

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Asked on Jul 12, 2023

Noncompete agreement and business partners?

I am a business owner who has recently acquired a new partner. We are in the process of drafting a Noncompete Agreement to ensure that neither of us will compete against each other in the same market. We are looking for advice on what should be included in the agreement and how it should be enforced.

Daniel D.

Answered Aug 4, 2023

The one thing to make sure with noncompete agreements is that it is reasonable in terms of duration and the area you cannot compete in. Courts use a reasonableness test to determine whether a noncompete agreement is valid. If provisions are deemed to be unreasonable and fail the test, they could be altered or struck out of the agreement.

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Asked on Jun 3, 2023

Noncompete agreement and moonlighting?

I am an employee at a company that has recently asked me to sign a noncompete agreement. I am considering doing so, but I am concerned about whether or not the agreement would prevent me from taking on additional freelance work outside of my normal job. I am interested in moonlighting and need to know if a noncompete agreement would limit my ability to do so.

Curt L.

Answered Jun 6, 2023

If you moonlighting work is in the same business and same market, it is almost certainly prohibited by a noncompete agreement.

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I am a consultant who is looking to take on a new client, but the client requires me to sign a Noncompete Agreement. I want to make sure that I am not signing away my rights, and that the agreement is fair and reasonable. I am also interested in understanding how this agreement would affect my ability to work with other clients.

Venus C.

Answered May 30, 2023

Hello. I appreciate your concerns about signing a Noncompete Agreement. It's essential to protect your rights and ensure the agreement is fair and reasonable given that a noncompete typically restricts competing activities during or after the term of engagement. Without knowing more about the business relationship and reviewing the actual terms, whether the non-compete is fair, reasonable, or even enforceable remains an open-ended question. Bearing this in mind, if the noncompete is preventing you from taking on other clients during or after the end of your relationship (or both), the scope of this restriction must be reasonable in terms of time, geographic area, and the specific activities it seeks to prevent. For example, does the noncompete specify the types of clients, industries, or geographic areas that are off-limits? What is the duration of the noncompete? If the client breaches your main agreement, will that render your noncompete void and unenforceable? These are just a few general questions that require a thorough review and analysis against Florida non-compete laws. Overall, the ultimate goal is to carefully review the terms to understand how they might impact your ability to take on new clients. If you don’t understand or are unsure about the contractual terms and their legal implications, it's highly recommended you consult with an attorney who can review the noncompete and provide you with personalized legal advice before you sign.

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Asked on Jul 13, 2023

Can a noncompete agreement be waived?

I am a small business owner in the retail industry and I am looking to hire a new employee. The employee has a noncompete agreement with their previous employer that I am concerned about. I want to know if it's possible for the agreement to be waived so that I can be sure I'm making the right decision in hiring this employee.

Thomas L.

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Yes, the parties to contracts can always agree to amendments and waivers. However, the former employer may have no interest in waiving the contract in this particular situation.

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I am an entrepreneur who recently signed a Noncompete Agreement with a potential business partner, and I am looking to gain a better understanding of the time restrictions that are in place. I am concerned that the terms of the agreement may prevent me from pursuing other opportunities in the future and want to make sure I am aware of all the restrictions before making any decisions.

Gagandeep K.

Answered May 30, 2023

The non-compete agreement will likely specify the non-compete period/time restriction. If that is not obviously stated, you should consider having an attorney review the non-compete agreement. Typically, a non-compete agreement in a partnership or LLC places a geographic limitation for a certain time period such that the partner/member is prevented from carrying-on a similar business in a geographic area where the partnership/LLC has done and continues to do business. You can read more about non-compete agreements in California here: https://www.contractscounsel.com/t/us/noncompete-agreement/california.

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