Virginia Non-Compete Lawyer

Do You Need Help with a Virginia Non-Compete?

You’re in the right place. As a Virginia non-compete lawyer, I help people determine whether their non-compete is enforceable under Virginia law, and whether something can be done about it.

Here is what you need to know about your non-compete.

First, the enforceability of your non-compete depends on state law. Each state has a different set of laws that apply to non-compete contracts. In California, non-compete contracts are illegal. In other states, such as Virginia, non-compete contracts are legal and permissible. Every state is different.

Second, Virginia non-compete contracts are common. I’ve reviewed non-compete contracts for physicians, veterinarians, nurse practitioners, sales managers, engineers, software developers, general contractors, roofing contractors, independent contractors, graphic designers, cheerleading coaches, piano teachers, etc. Non-compete contracts show up in lots of industries:

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Third, most importantly, just because non-competes are legal doesn’t mean your non-compete is enforceable. I’ve seen many employers use poorly written, formulaic non-compete clauses in employment contracts that have never been updated – even though the law has changed in the past five years.

The bottom line is that in many cases, something can be done about your non-compete contract.

The first step is to schedule a review of the contract. Ideally, you want to schedule the review before you sign, switch jobs, or undertake any action that might breach the agreement.

When you contact me, we can perform a comprehensive review of its terms and provide you with a written opinion on whether a court is likely to enforce it. We can also help negotiate with your employer to resolve any disputes. You have rights under the law, and we can help you protect your livelihood.

Overview of Virginia Non-Compete Law

When we review your contract, we’ll reference the Virginia laws that apply to non-compete contracts.

Under Virginia law, a non-compete is unenforceable unless it “is narrowly drawn to protect the employer’s legitimate business interest, is not unduly burdensome on the employee’s ability to earn a living, and is not against public policy.” Omniplex World Servs. Corp. v. US Investigations Servs., Inc., 270 Va. 246, 249 (2005). The employer bears the burden of proving each of these factors. Modern Env’ts, Inc. v. Stinnett, 263 Va. 491, 493 (2002).

When evaluating whether the employer has met its burden, a Virginia court will consider the “function, geographic scope, and duration” elements of the restriction. Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412 (2011). Where an employer seeks to prohibit an employee from soliciting customers or joining a competitor in any capacity, it must prove a legitimate business interest for doing so. Modern Env’ts, 263 Va. at 495.

In other words, the non-compete must be reasonable in geographic scope, duration, and functional limitation.

The Supreme Court of Virginia has struck down non-competes that are overbroad.

In Home Paramount, the Court struck a non-compete clause that barred the employee “from engaging even indirectly, or concerning himself in any manner whatsoever, in the pest control business, even as a passive stockholder of a publicly traded international conglomerate with a pest control subsidiary.” 282 Va. at 418. The Supreme Court held that such a “sweeping prohibition” bears no relationship to prohibiting actual business activity that the employee provided to his former employer, and therefore was an unreasonable restraint on trade and must be held unenforceable. Id.

The law of non-compete contracts is always evolving – the Court generally releases a non-compete opinion at least once every several years – and every Virginia non-compete must comply with current law, or it is unenforceable.

“Is My Virginia Non-Compete Enforceable?”

We can help answer whether your non-compete is enforceable under Virginia law.

It depends on the language in the contract. Even if both parties signed the contract, there’s a possibility a judge may invalidate it in court. There are lots of reasons why a Virginia non-compete might be struck down by a judge:

• The terms are overbroad, i.e. too long duration, too large geographic scope
• The functional limitation is too general, i.e. fails the “Janitor Test”
• The employer breached the contract first, i.e. doctrine of unclean hands
• The contract lacks consideration
• The contract was not signed by a proper party
• The company merged and there was no assignment clause
• Doctrine of waiver
• Doctrine of estoppel

In reviewing hundreds of non-compete contracts across a wide variety of industries, I’ve seen many with sloppy terms, overbroad language, and other defects. Some of the contracts are outdated. Others are poorly written. In one case, the employer didn’t even take the “LegalZoom” logo off the contract header. There are lots of unenforceable Virginia non-competes out there.

So what can you do if your non-compete is potentially unenforceable?

You can file a claim – called a declaratory judgment action – asking a Virginia judge to invalidate the non-compete contract. This process can take several months. The better course of action, which is where the firm can help, is to work something out with your employer to release you from the non-compete.

What I generally do is work up a detailed written analysis of all the various ways that the non-compete is likely to be tossed out in court. Then, a negotiation ensues, whereby you get released from the contract, usually with some consideration in exchange.

The threat of legal challenge often causes employers to drop non-compete claims altogether, or settle out of court for a small sum of money in exchange for releasing an employee from the non-compete. This works whether you are proactive, responding to a cease and desist letter, or even in litigation.

Not every non-compete can be challenged. But if your non-compete is overbroad, we can take the above approach to obtain a result that works for you – and help you move on from the non-compete.

Contact a Virginia Non-Compete Lawyer

If you need a Virginia non-compete lawyer, contact me to review your contract and provide you with guidance on whether it is enforceable. This work can be done at a reasonable cost no matter where you are located in the state.

We offer a free consultation to get started. Non-compete reviews can be scheduled remotely, and I have helped clients throughout Virginia. The turnaround is generally 48 hours. I will compare it against non-compete contracts that have been enforced or struck down by Virginia courts, and provide you with a plan of action – whether you’re changing jobs, starting a company, or updating your agreements at work.

For a free consultation, call (540) 488-5702 or email rob@robdeanlaw.com.