Covenants not to compete are comprised of both non-solicitation and non-competition agreements. Typically, these agreements arise when employers want to guard against employees using information or trade secrets to start or work for a similar competitive company. In Virginia, courts balance an employee’s right to secure employment and the employer’s legitimate interest in protecting his business. When evaluating whether a non-compete agreement is valid, courts will consider the “function, geographic scope, and duration” of the restriction. This inquiry examines whether the time and scope of the agreement is limited to protecting the legitimate business interests of the employer, and whether the restriction is an unduly harsh or oppressive restraint on the employee’s efforts to earn a living. If any portion of the non-compete is overly broad or unreasonable, the entire provision will be deemed void and unenforceable.
While non-compete provisions are generally enforceable, it’s important to use clear and unambiguous language to narrowly tailor reasonable protections for your business. Whether you are an employer seeking to protect your business interests or an employee subject to a non-compete, Paul Miller can provide experienced counsel and guidance assessing your employment contracts.