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Is my non-compete invalid because Virginia is “right to work”?

Is my non-compete invalid because Virginia is “right to work”?

It is a common statement from employees with non-compete contracts: “There’s no way the judge is going to prevent me from working, no matter what this contract says. After all, Virginia is a right to work state!”

Wrong. Right to work has nothing to do with non-compete contracts.

The definition of “right to work” has no application whatsoever to non-compete, non-solicit, or “no compete” agreements. A Virginia court will not strike down an otherwise enforceable, valid non-compete contract merely because an employee has a “right to work” in their chosen profession.

The reason for the misconception is understandable. When you think of the phrase “right to work,” perhaps you assume it means that an employee has a greater right to earn a living in their trade. In most cases, employees do have a right to be free to earn a living. A court will consider whether the non-compete is unduly harsh on the ability of the employee to work in their field.

But does “right to work” law have anything to do with it?

No. The term “right to work” refers to the right of a Virginia employee to decline to join a union. In other words, Virginia is an “open shop” state. Employees have a “right to work” even if a factory or workplace has unionized. (By contrast, some states deny employees “right to work” if their business has unionized, and these states allow unions to require new employees to join the union as a condition of employment).

The bottom line is that just because Virginia is a “right to work” state, it does not mean that your non-compete will be struck down. In fact, so long as the non-compete is reasonable in duration, function, and geographic scope, the non-compete may still be enforced.

An experienced non-compete lawyer can review the terms of the non-compete and help the employee understand whether it will be enforced against them in court – and in turn, help the employee minimize risk when starting a new job or opening a business.


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