This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry, Esq.
Noncompete agreements in the Commonwealth of Virginia have undergone some changes since 2020. It’s very important to obtain legal advice before signing a noncompete agreement since noncompete issues often arise when an employee is facing termination from employment or a decision to leave an employer.
What is a Noncompete Agreement?
A noncompete agreement is a contract in which an employee agrees to give up a right that they would otherwise have in exchange for something from an employer. An employer often ties a noncompete agreement or clause to severance payments. The general purpose of a noncompete agreement is to ensure that a former employee does not use the knowledge they have gained with an employer and then later attempt to compete against them using this knowledge.
Virginia Requirements for Noncompete Agreements
In general, a noncompete agreement in Virginia must be reasonable to be valid. An agreement that restrains competition “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).
According to the Virginia Supreme Court, in order to be enforceable, a noncompete agreement must meet a three-part test. Under this test, the employer bears the burden to show that the non-compete agreement or clause is:
- no greater than necessary to protect a legitimate business interest,
- is not unduly harsh or oppressive in curtailing an employee’s ability to earn a livelihood and
- 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).
When applying these tests in Virginia, the courts have become more employee friendly in recent years. Noncompete agreements that are too vague or cumbersome may be invalidated. Courts are more likely to enforce noncompete agreements that are reasonable, have a limited geographic scope and are precise in their terms.
Virginia Recently Barred Noncompete Agreements for Low-Wage Workers
Virginia has also added new protections for low-wage workers, exempting them from noncompete agreements. As of July 1, 2020, Virginia now prohibits employers from placing noncompete restrictions on low-wage employees. This law only applies to noncompete provisions that came into effect on or after July 1, 2020. See Virginia Code § 40.1-28.7:8.
When noncompete issues arise, it’s important to get legal advice early and not wait until issues develop. These types of agreements, even if already in effect, may be renegotiated. If you are employed in Virginia and have signed or are considering signing a noncompete agreement, you should seek the advice of a qualified Virginia employment lawyer.
If you are in need of advice regarding noncompete 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.
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The Arlington-Aachen High School exchange is returning this summer and currently accepting applicants.
The sister-city partnership started in 1993 by the Arlington Sister Cities Association, which seeks to promote Arlington’s international profile through a variety of exchanges in education, commerce, culture and the arts. The exchange, scheduled June 17th to July 4th, includes a two-week homestay in Aachen plus three days in Berlin. Knowledge of the German language is not required for the trip.
Former participants have this to say:
_”The Aachen exchange was an eye-opening experience where I was fully immersed in the life of a German student. I loved biking through the countryside to Belgium, having gelato and picnics in the town square, and hanging out with my German host student’s friends. My first time out of the country, the Aachen exchange taught me to keep an open mind, because you never know what could be a life changing experience.” – Kelly M._
Learn about the new assessment of Arlington’s urban tree canopy and the many ecological and social benefits trees provide. Staff from the Green Infrastructure Center (GIC) will share study results and compare canopy cover for different areas of Arlington.The webinar will include assessments of ecosystem services such as stormwater mitigation, air quality, carbon uptake, and urban heat islands. For background on Arlington trees see the “Tree Benefits: Growing Arlington’s Urban Forest” presentation at http://www.gicinc.org/PDFs/Presentation_TreeBenefits_Arlington.pdf.
Please register in advance to assure your place at the webinar, https://attendee.gotowebinar.com/register/29543206508863839.
About the Arlington County Civic Federation: The Arlington County Civic Federation (“ACCF”) is a not-for-profit corporation which provides a forum for civic groups to discuss, debate, inform, advocate and provide oversight on important community issues, on a non-partisan basis. Its members include over ninety civic groups representing a broad cross-section of the community. Communications, resolutions and feedback are regularly provided to the Arlington County Government.
The next meeting is on Tuesday, February 21,2023 at 7 pm. This meeting is open to the public and will be hybrid, in-person and virtually through Zoom. Part of the agenda will be a discussion and vote on a resolution “To Restore Public Confidence in Arlington County’s Governance”. For more information on ACCF and this meeting, go to https://www.civfed.org/.
Valentine gifts for someone special or for yourself are here at George Mason University from noon -4pm on February 14, 2023. Satisfy your sweet tooth with Kingsbury Chocolates, find a handmade bag from Karina Gaull, pick up treats from Village