The longer the time and the longer the period and geographic area subject to a non-competition clause, the more likely a court is to apply the non-competition agreement. When an employer proves that the former employee has breached a non-compete agreement in force, the Virginia courts may grant the employer a financial and/or subjective remedy. As our society and workforce have become more mobile, the presence of competitive alliances has increased. What does this mean for current workers and employers? In Virginia, non-competitive agreements are not favoured and are only applied if certain requirements are met. To be applicable in Virginia, a non-compete alliance (i) must be tight to protect a legitimate business interest, (ii) not be excessively burdensome for the worker`s ability to earn a living and (iii) not be contrary to Virginia`s public policy. Since they are unfavourable in Virginia, an employer bears the burden of proof to maintain a competition agreement, and any ambiguity in the agreement is interpreted against the employer. Assessing whether an employer met this heavy burden in a given case generally depends on the extent of the functional, geographic and temporal elements of the restriction. The courts will jointly review all of these elements in order to reach a final decision. Because of this restriction on workers` rights, Virginia courts do not want to enforce non-compete agreements. However, they will do so as long as employers follow certain rules and respect concepts of fairness.
We will discuss the most important rules and concepts below. There are two main restrictions on the applicability of a non-compete clause: geography and time. By 1 July 2020, employers should review their form and non-competition conditions – and other restrictive agreements – to ensure compliance with the new restrictions. Employers should publish the necessary notification of the new law before the same day. And remember that you can`t even threaten to impose a (broadly defined) non-compete clause that was concluded on Or after July 1, 2020 against a low-wage worker (i.e. someone earning about $50,000). And if part of the non-competition agreement is confused, the court will interpret that it is assisting the former employee and harming the employer. If you are an employee in Virginia and have signed (1) a non-compete agreement or are considering signing an agreement not to enter the state, you should seek advice from a qualified lawyer. The law firm Erlich has extensive experience in assisting clients in employment contracts. As always, contact one of our lawyers at (703) 791-9087 or email us for a consultation.
The law defines “the alliance of not competing” as “a contract or agreement, including a provision of an employment contract, between employers and workers, which limits, prohibits or otherwise limits a person`s ability to compete with his or her former employer after leaving the person`s employment.” The definition also states that non-compete agreements “do not prevent an employee from providing a service to a customer or an employer`s customer if the employee does not initiate or request any contact with the customer or customer.” Non-competitive agreements include both non-competition and non-appeal agreements between companies and their employees or contractors.