Legal Insider: Non-Competition Law Trends in Virginia

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.

Depending on your particular profession, your employer may require you to sign a stand-alone non-competition agreement, non-solicitation agreement, or other similar restrictive covenant or your employer may include a non-competition and non-solicitation clause in your employment or severance agreement.

Non-competition agreements or clauses typically stipulate that the employee agrees not to enter into or start a similar profession that competes with the employer’s business within a geographic area after he or she terminates employment. Non-solicitation agreements or clauses typically restrict the employee’s ability to solicit, encourage, or assist other employees with leaving or seeking employment with the employee at a competitive employer.

These types of restrictive covenants are usually in effect for a specific period of time and within a limited geographic area after the employment ends.

It is important to note that restrictive covenants narrowly tailored in geographic scope, duration, and type of activities are more likely to be enforced than more broadly drafted restrictive covenants. In particular, the scope of restricted activities and geographic area involved should be related to the employee’s job duties as well as the employer’s business.

Restrictive covenants that were created several years ago may no longer be considered enforceable based on changes in the law. Therefore, it is a good idea for employers to review and consider revising restrictive covenants that were written more than five years ago.

Employers should also note that non-competition and other important employment agreements usually are not enforceable against an employee unless a fully executed copy exists. As such, employers should make sure to sign and carefully maintain their agreements.

Virginia courts will not “blue pencil” or attempt to revise or enforce a narrower restriction in the covenant. As a result, a drafting error or otherwise unenforceable restriction in a larger restrictive covenant or agreement will typically render the entire agreement unenforceable in Virginia.

Furthermore, the Virginia Supreme Court clearly disfavors non-compete covenants. In fact, the Court has not rendered a decision that clearly favors the employer in a restrictive covenant case since the 1990s.

We represent employees and employers in employment law matters.  If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.