Are employee non-compete agreements enforceable in Virginia?
Sometimes. Virginia remains a reasonableness state for workers outside the statutory ban, but Va. Code § 40.1-28.7:8 flatly prohibits employers from entering into, enforcing, or threatening to enforce non-competes with covered low-wage employees and, since July 1, 2026, with health care professionals .
The result is a statutory-first track. For covered workers, the statute controls first. For everyone else, the common-law test controls, and the employer must prove a restraint is narrowly drawn, not unduly burdensome on earning a living, and consistent with public policy . For a clause-by-clause pass over a specific agreement against both tracks, the Virginia non-compete reviewer checklist walks the full covenant suite item by item with each requirement's force level.
The statutory track is broad after the 2025 and 2026 amendments. The Virginia Department of Workforce Development and Advancement calculates the 2026 wage threshold at less than $1,507.01 per week, the protected class also includes FLSA non-exempt employees regardless of earnings, and the statute now separately covers health care professionals.
There is also an enforcement economics gate. For agreements entered into, amended, or renewed on or after July 1, 2026, a non-compete is unenforceable after a discharge without cause unless the employer provides severance benefits or another monetary payment disclosed when the covenant is signed . Agreements entered into, amended, or renewed before that date remain outside that severance rule until a later amendment or renewal pulls them into the current regime .
Do not treat Virginia as either a total-ban state or a simple reasonableness state. The first question is whether § 40.1-28.7:8 bars the covenant for the worker; only then does common-law reasonableness matter.
The without-cause severance clause implements the SB 170 rule: for agreements entered into, amended, or renewed on or after July 1, 2026, a non-compete is unenforceable after a discharge without cause unless the employee receives severance benefits or another monetary payment disclosed when the covenant is signed . The clause states the commitment on the face of the agreement so the disclosure-at-execution element is satisfied rather than improvised at termination. The rule is prospective — but a routine amendment or renewal of an older covenant pulls it into the current regime, so the severance economics must be in place before any amendment or renewal takes effect .
Sources for this answer
Primary source · Primary law
A.1 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the statutory ban on entering into, enforcing, or threatening to enforce a non-compete with any low-wage employee or health care professional.
No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee or health care professional.
See Va. Code Ann. § 40.1-28.7:8(B). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Case law · 2005-09-16
A.2 Omniplex World Services Corp. v. U.S. Investigations Services, Inc.Omniplex supports Virginia's common-law reasonableness test for employee non-competes outside the statutory ban.
These considerations form the basis of the three-part test we use to determine the validity of restrictive covenants: (1) Is the restraint, from the standpoint of the employer, reasonable in the sense that it is no greater than necessary to protect the employer in some legitimate business interest? (2) From the standpoint of the employee, is the restraint reasonable in the sense that it is not unduly harsh and oppressive in curtailing his legitimate efforts to earn a livelihood? (3) Is the restraint reasonable from the standpoint of a sound public policy?
See Omniplex World Servs. Corp. v. U.S. Investigations Servs., Inc., 270 Va. 246, 618 S.E.2d 340 (2005).
Official source · Agency guidance
A.3 Virginia DOLI Notice of the Average Weekly Wage for 2026Virginia DOLI supports the 2026 low-wage threshold and the FLSA-non-exempt expansion effective July 1, 2025.
Effective July 1, 2025, a “low-wage employee” also includes an employee who, regardless of average weekly earnings, is entitled to overtime compensation under the provisions of the Fair Labor Standards Act for any hours worked in excess of 40 hours in any one workweek.
See Virginia Department of Workforce Development and Advancement, Notice of the Average Weekly Wage for 2026 (Jan. 6, 2026).
Primary source · Primary law · 2026-07-01
A.4 Virginia Acts of Assembly Ch. 883 (SB 170), Va. Code § 40.1-28.7:8(C)2026 Va. Acts ch. 883 (SB 170) makes a non-compete unenforceable when the employer discharges the employee without cause without providing severance or other monetary payment, and requires that any such payment be disclosed upon execution.
No covenant not to compete between an employer and an employee is enforceable if such employer discharges such employee from employment without providing severance benefits or other monetary payment to such employee, unless such employer discharges such employee for cause. Such severance benefits or other monetary payment shall be disclosed upon execution of the covenant not to compete.
See 2026 Va. Acts ch. 883 (S.B. 170) (codified at Va. Code Ann. § 40.1-28.7:8(C), eff. July 1, 2026). (2026 Va. Acts ch. 883 (S.B. 170).)
Primary source · Primary law · 2026-07-01
A.5 Virginia Acts of Assembly Ch. 883 (SB 170), enactment clause 22026 Va. Acts ch. 883 (SB 170) applies only prospectively, leaving agreements entered into, amended, or renewed before July 1, 2026 unaffected.
That nothing in this act shall invalidate, alter, or otherwise affect any contract, covenant, or agreement entered into, amended, or renewed prior to July 1, 2026.
See 2026 Va. Acts ch. 883 (S.B. 170), cl. 2.
What makes a Virginia non-compete reasonable or enforceable?
A Virginia employee non-compete must satisfy a three-part reasonableness test and must be evaluated through function, geography, and duration together.
The employer bears the burden. Virginia courts ask whether the restraint protects a legitimate business interest, whether it is unduly harsh in limiting the employee's livelihood, and whether it fits sound public policy . They then examine the function, geographic scope, and duration as an integrated whole rather than isolated drafting boxes .
Function is often the trap. In Home Paramount, the Supreme Court of Virginia rejected a clause that barred pest-control work in any capacity because it was not confined to the employee's actual work or the employer's proved interest . In Motion Control, the court similarly rejected a restraint reaching a wide range of businesses unrelated to the employer's specialized business .
Each case remains fact-specific. Modern Environments states that restrictive covenants are strictly construed, and the employer must produce the justification for the actual restraint it chose .
Confine the non-compete to the role Employee actually performed — that tailoring, not any recital, is what carries it. The OpenAgreements Virginia restrictive covenant form gives you no reasonableness clause to lean on, and none would help: Virginia weighs function, geography, and duration together under the three-part test — no greater than necessary for a legitimate business interest, not unduly harsh on the worker's livelihood, consistent with sound public policy — and the employer bears the burden on every prong. Function is where Virginia covenants die: an any-capacity bar and a similar-business definition reaching unrelated enterprises have both been struck, and clear function overbreadth cannot be saved by narrow geography and duration. List real Specified Competitors in Cover Terms so the covenant visibly reaches no further than the protected interest requires; a recital will not substitute for that showing if you have to defend the covenant .
Sources for this answer
Primary source · Case law · 2005-09-16
B.1 Omniplex World Services Corp. v. U.S. Investigations Services, Inc.Omniplex supports Virginia's three-part test asking whether the restraint protects the employer, does not unduly burden the employee, and is reasonable from a public-policy standpoint.
These considerations form the basis of the three-part test we use to determine the validity of restrictive covenants: (1) Is the restraint, from the standpoint of the employer, reasonable in the sense that it is no greater than necessary to protect the employer in some legitimate business interest? (2) From the standpoint of the employee, is the restraint reasonable in the sense that it is not unduly harsh and oppressive in curtailing his legitimate efforts to earn a livelihood? (3) Is the restraint reasonable from the standpoint of a sound public policy?
See Omniplex World Servs. Corp. v. U.S. Investigations Servs., Inc., 270 Va. 246, 618 S.E.2d 340 (2005).
Primary source · Case law · 2012-09-14
B.2 Preferred Systems Solutions, Inc. v. GP Consulting, LLCPreferred Systems supports evaluating function, geographic scope, and duration together rather than as distinct inquiries.
We assess these elements together rather than as distinct inquiries.
See Preferred Sys. Sols., Inc. v. GP Consulting, LLC, 284 Va. 382 (2012).
Primary source · Case law · 2011-11-04
B.3 Home Paramount Pest Control Cos. v. ShafferHome Paramount supports the function-overbreadth rule that a covenant barring work for competitors in any capacity requires proof of a legitimate business interest in that sweeping restraint.
Because Home Paramount did not confine the function element of the Provision to those activities it actually engaged in, it bore the burden of proving a legitimate business interest in prohibiting Shaffer from engaging in all reasonably conceivable activities while employed by a competitor.
See Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 (2011).
Primary source · Case law · 2001-06-08
B.4 Motion Control Systems, Inc. v. EastMotion Control supports invalidating a covenant whose similar-business language reaches unrelated enterprises beyond the employer's legitimate business interest.
Accordingly, we conclude that the trial court did not err in holding that the covenant not to compete in this case imposed restraints that exceeded those necessary to protect the legitimate business interests of MCS and, therefore, was unenforceable.
See Motion Control Sys., Inc. v. East, 262 Va. 33, 546 S.E.2d 424 (2001).
Primary source · Case law · 2011-11-04
B.6 Home Paramount Pest Control Cos. v. ShafferHome Paramount supports the rule that clear function overbreadth cannot be rescued by narrow geography and duration.
the clear overbreadth of the function here cannot be saved by narrow tailoring of geographic scope and duration.
See Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 (2011).
Primary source · Case law · 2002-04-19
B.5 Modern Environments, Inc. v. StinnettModern Environments supports the employer's burden to prove a restraint is no greater than necessary, not unduly harsh, and reasonable in light of public policy.
Second, the employer bears the burden to show that the restraint 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.
See Modern Env'ts, Inc. v. Stinnett, 263 Va. 491, 561 S.E.2d 694 (2002).
Which Virginia employees cannot be bound by non-competes under the statutory ban?
Virginia employers cannot use employment non-competes with statutory low-wage employees, a group that now includes workers below the 2026 weekly wage threshold and FLSA non-exempt employees regardless of pay, or with health care professionals covered by the 2026 amendment.
For 2026, the wage threshold is less than $1,507.01 per week, or about $78,364.52 per year. The statute also covers interns, students, apprentices, trainees, and certain lower-paid independent contractors, while excluding employees whose earnings are derived in whole or predominant part from sales commissions, incentives, or bonuses.
The health-care rule is categorical for employment non-competes. A health care professional means a person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work, so no pay level restores the employment covenant for those workers . The rule is not a total ban on every restrictive term in a health-care transaction: the statute still permits a reasonable sale-of-business covenant, training-cost repayment terms, and a narrowly construed customer non-solicit.
The remedies have teeth. A covered worker may sue within the statutory limitations period; a court may void the covenant, enjoin conduct, award lost compensation, damages, liquidated damages, and attorney fees; DOLI may assess a $10,000 civil penalty for each violation; and employers must post the required notice.
The FLSA-non-exempt expansion is independent of the dollar threshold. A highly paid non-exempt employee can still be protected by § 40.1-28.7:8 because the statute covers workers entitled to overtime regardless of average weekly earnings.
The statute's protections surface in the covenant only as operative carve-outs; its enforcement apparatus lives in § 40.1-28.7:8, not in the contract text, and it is severe. A covered worker may sue within the statutory limitations window, and a court may void the covenant, enjoin conduct, and award liquidated damages, lost compensation, damages, and reasonable costs, expert fees, and attorney fees. DOLI may assess a $10,000 civil penalty for each violation, and merely presenting or threatening to enforce a barred covenant is itself a violation — so confirm the worker is outside the protected class before you hand over the OpenAgreements Virginia restrictive covenant form at all . The protected class reaches beyond the weekly-earnings figure to interns, students, apprentices, trainees, and certain lower-paid independent contractors, while excluding predominantly commission-, incentive-, or bonus-compensated workers. The current-year threshold surfaced beneath Cover Terms resets annually . A successor or assignee inherits the same statutory bar along with the contract.
There is a statutory obligation to post a copy of § 40.1-28.7:8, or a Department-approved summary, where other required employee notices are posted . Treat the posting as a rollout-checklist item: confirm it is up before any Virginia covenant program goes out. An employer relying on the section's exceptions while ignoring its posting duty is out of compliance with the same section.
The health care exclusion states the covered licenses as an objective condition rather than labeling the worker. It implements the SB 128 categorical ban, effective July 1, 2026, for persons licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work — and no earnings level restores an employment non-compete for a covered professional.
Sources for this answer
Primary source · Primary law
C.1 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the average-weekly-wage prong of the statutory low-wage employee definition.
means an employee (i) whose average weekly earnings, calculated by dividing the employee's earnings during the period of 52 weeks immediately preceding the date of termination of employment by 52, or if an employee worked fewer than 52 weeks, by the number of weeks that the employee was actually paid during the 52-week period, are less than the average weekly wage of the Commonwealth as determined pursuant to subsection B of § 65.2-500
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.2 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the FLSA-overtime prong of the statutory low-wage employee definition.
who, regardless of his average weekly earnings, is entitled to overtime compensation under the provisions of 29 U.S.C. § 207 for any hours worked in excess of 40 hours in any one workweek.
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.6 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports including interns, students, apprentices, and trainees in the low-wage employee definition.
includes interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience.
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.7 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports including lower-paid independent contractors in the low-wage employee definition.
also includes an individual who has independently contracted with another person to perform services independent of an employment relationship and who is compensated for such services by such person at an hourly rate that is less than the median hourly wage for the Commonwealth for all occupations as reported, for the preceding year, by the Bureau of Labor Statistics of the U.S. Department of Labor.
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.8 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the statutory exclusion for employees whose earnings are derived in whole or predominant part from sales commissions, incentives, or bonuses.
does not include any employee whose earnings are derived, in whole or in predominant part, from sales commissions, incentives, or bonuses paid to the employee by the employer.
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Official source · Agency guidance
C.3 Virginia DOLI Notice of the Average Weekly Wage for 2026Virginia DOLI supports the 2026 threshold of less than $1,507.01 per week.
Pursuant to Va. Code § 40.1-28.7:8, the term “low-wage employee” as applied to covenants not to compete has been calculated by the Virginia Department of Workforce Development and Advancement to include all employees who earn an average of less than $1,507.01 per week.
See Virginia Department of Workforce Development and Advancement, Notice of the Average Weekly Wage for 2026 (Jan. 6, 2026).
Official source · Agency guidance
C.4 Virginia DOLI Notice of the Average Weekly Wage for 2026Virginia DOLI supports the July 1, 2025 inclusion of FLSA-overtime employees regardless of average weekly earnings.
Effective July 1, 2025, a “low-wage employee” also includes an employee who, regardless of average weekly earnings, is entitled to overtime compensation under the provisions of the Fair Labor Standards Act for any hours worked in excess of 40 hours in any one workweek.
See Virginia Department of Workforce Development and Advancement, Notice of the Average Weekly Wage for 2026 (Jan. 6, 2026).
Primary source · Primary law
C.12 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the private action, limitations period, voiding, injunction, liquidated-damages, lost-compensation, damages, and reasonable-attorney-fee remedies.
An employee or health care professional may bring a civil action in a court of competent jurisdiction against any former employer or other person that attempts to enforce a covenant not to compete against such employee in violation of this section. An action under this section shall be brought within two years of the latter of (i) the date the covenant not to compete was signed, (ii) the date the employee or health care professional learns of the covenant not to compete, (iii) the date the employment relationship is terminated, or (iv) the date the employer takes any step to enforce the covenant not to compete. The court shall have jurisdiction to void any covenant not to compete with an employee or health care professional and to order all appropriate relief, including enjoining the conduct of any person or employer, ordering payment of liquidated damages, and awarding lost compensation, damages, and reasonable attorney fees and costs.
See Va. Code Ann. § 40.1-28.7:8(D). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.14 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports DOLI's $10,000 civil penalty for each violation of subsection B or C as determined by the Commissioner.
Any employer that violates the provisions of subsection B or C as determined by the Commissioner shall be subject to a civil penalty of $10,000 for each violation.
See Va. Code Ann. § 40.1-28.7:8(E). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.13 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports recovery of reasonable costs, expert fees, and attorney fees after a court finds a violation.
If the court finds a violation of the provisions of this section, the plaintiff shall be entitled to recover reasonable costs, including costs and reasonable fees for expert witnesses, and attorney fees from the former employer or other person who attempts to enforce an unlawful covenant not to compete against such plaintiff.
See Va. Code Ann. § 40.1-28.7:8(F). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
C.15 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the employer posting requirement.
Every employer shall post a copy of this section or a summary approved by the Department in the same location where other employee notices required by state or federal law are posted.
See Va. Code Ann. § 40.1-28.7:8(G). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law · 2026-07-01
C.5 Virginia Acts of Assembly Ch. 1114 (SB 128), Va. Code § 40.1-28.7:8(B)2026 Va. Acts ch. 1114 (SB 128) extends the statutory ban so that no employer may enter into, enforce, or threaten to enforce a non-compete with any low-wage employee or health care professional.
No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee or health care professional.
See 2026 Va. Acts ch. 1114 (S.B. 128) (codified at Va. Code Ann. § 40.1-28.7:8(B), eff. July 1, 2026). (2026 Va. Acts ch. 1114 (S.B. 128).)
Primary source · Primary law · 2026-07-01
C.9 Virginia Acts of Assembly Ch. 1114 (SB 128), Va. Code § 40.1-28.7:8(A)2026 Va. Acts ch. 1114 (SB 128) defines a health care professional as any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.
“Health care professional” means any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.
See 2026 Va. Acts ch. 1114 (S.B. 128) (codified at Va. Code Ann. § 40.1-28.7:8(A), eff. July 1, 2026). (2026 Va. Acts ch. 1114 (S.B. 128).)
Primary source · Primary law · 2026-07-01
C.10 Virginia Acts of Assembly Ch. 1114 (SB 128), Va. Code § 40.1-28.7:8(H)(2)2026 Va. Acts ch. 1114 (SB 128) preserves a sale-of-business covenant not to compete with a health care professional, provided it is reasonable in scope, duration, and geographic area.
In such transactions, the seller and buyer may enter a covenant not to compete or similarly restrictive covenant for the health care professional or such person's business entity, provided that such covenant not to compete or similarly restrictive covenant is reasonable in scope, duration, and geographic area.
See 2026 Va. Acts ch. 1114 (S.B. 128) (codified at Va. Code Ann. § 40.1-28.7:8(H)(2), eff. July 1, 2026). (2026 Va. Acts ch. 1114 (S.B. 128).)
Primary source · Primary law · 2026-07-01
C.11 Virginia Acts of Assembly Ch. 1114 (SB 128), Va. Code § 40.1-28.7:8(I)2026 Va. Acts ch. 1114 (SB 128) leaves health-care employers free to use training-cost repayment terms and a customer non-solicit that is narrowly construed to the professional's own material-contact customers and substantially similar services.
Any reference to a prohibition against soliciting or attempting to solicit customers shall be narrowly construed to apply only to (i) the health care professional's customers, including actively sought prospective customers, with whom the health care professional had material contact during employment and (ii) products and services that are the same as or substantially similar to those provided by the employer.
See 2026 Va. Acts ch. 1114 (S.B. 128) (codified at Va. Code Ann. § 40.1-28.7:8(I), eff. July 1, 2026). (2026 Va. Acts ch. 1114 (S.B. 128).)
Will a Virginia court narrow or blue-pencil an overbroad non-compete?
No, not in the practical sense employers usually mean. Virginia courts strictly construe restrictive covenants, and a clear overbreadth problem can make the covenant unenforceable rather than narrowed by the court.
The strict approach matters because overbreadth in one element can sink the whole restraint. Home Paramount refused to save an overbroad function restriction with narrower geography and duration, and rejected the employer's attempt to narrow clear text through extrinsic evidence.
That does not mean every enforceability question can be decided from the pleadings. In Assurance Data, the Supreme Court of Virginia warned that restraints are neither enforceable nor unenforceable in a factual vacuum; the court needs evidence before deciding whether the actual restraint is reasonable as a whole .
Do not rely on a savings clause to rescue broad language. Virginia's cases put the burden on the employer to defend the language it chose, and clear overbreadth cannot be cured by asking the court to read the covenant as if it were narrower.
Sources for this answer
Primary source · Case law · 2001-06-08
D.1 Motion Control Systems, Inc. v. EastMotion Control supports strict construction of Virginia non-competes and employee-favorable construction of ambiguities.
As a restraint of trade, the covenant must be strictly construed and, if ambiguous, it must be construed in favor of the employee.
See Motion Control Sys., Inc. v. East, 262 Va. 33, 546 S.E.2d 424 (2001).
Primary source · Case law · 2011-11-04
D.3 Home Paramount Pest Control Cos. v. ShafferHome Paramount supports the rule that clear function overbreadth cannot be saved by narrow geography and duration.
the clear overbreadth of the function here cannot be saved by narrow tailoring of geographic scope and duration.
See Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 (2011).
Primary source · Case law · 2011-11-04
D.2 Home Paramount Pest Control Cos. v. ShafferHome Paramount supports rejecting an attempt to narrow clear covenant language through extrinsic evidence.
Home Paramount thus was limited to adducing evidence to prove that the language it chose furthered its legitimate business interests, did not unduly burden Shaffer’s ability to earn a living, and was not contrary to public policy.
See Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 (2011).
Primary source · Case law · 2013-09-12
D.4 Assurance Data, Inc. v. MalyevacAssurance Data supports the procedural rule that enforceability of a Virginia restraint generally requires factual development rather than decision in a factual vacuum.
The premise running through Simmons, Modern Environments, Home Paramount, and our other decisions is that restraints on competition are neither enforceable nor unenforceable in a factual vacuum.
See Assurance Data, Inc. v. Malyevac, 286 Va. 137 (2013).
Does the restricted period toll or extend during breach or litigation in Virginia?
Virginia law does not squarely answer this in the staged authorities. No source in this corpus resolves whether a non-compete period tolls during breach or litigation, or whether an extension-on-breach clause is enforceable; the available cases only supply strict-construction and overbreadth background.
The risk-weighted answer is cautious. Virginia courts strictly construe non-competes as restraints of trade, and clear overbreadth can void a restraint rather than invite judicial narrowing. That backdrop makes a clause that lengthens the restricted period a plausible overbreadth risk, especially if it creates an open-ended or litigation-driven restraint.
Treat extension-on-breach drafting as unsettled Virginia law, not as an automatic equitable remedy. The available Virginia authorities support strict construction and no rescue for clear overbreadth, but they do not decide tolling or extension-on-breach clauses specifically.
Sources for this answer
Primary source · Case law · 2001-06-08
E.1 Motion Control Systems, Inc. v. EastMotion Control supports the strict-construction backdrop for assessing unresolved tolling or extension-on-breach risk.
As a restraint of trade, the covenant must be strictly construed and, if ambiguous, it must be construed in favor of the employee.
See Motion Control Sys., Inc. v. East, 262 Va. 33, 546 S.E.2d 424 (2001).
Primary source · Case law · 2011-11-04
E.2 Home Paramount Pest Control Cos. v. ShafferHome Paramount supports the strict-construction backdrop that clear overbreadth cannot be saved by narrower drafting elements.
the clear overbreadth of the function here cannot be saved by narrow tailoring of geographic scope and duration.
See Home Paramount Pest Control Cos. v. Shaffer, 282 Va. 412, 718 S.E.2d 762 (2011).
How do non-solicitation provisions fit in Virginia, especially for protected workers?
Customer non-solicits can fit differently from non-competes, but the line is narrow. Va. Code § 40.1-28.7:8 says a covenant not to compete cannot block a former employee from serving a customer if the employee did not initiate contact or solicit the customer .
In unpublished Sentry Force Security, LLC v. Barrera, the Court of Appeals of Virginia read that sentence to permit a restriction against direct customer solicitation, even assuming the worker was low wage . The same opinion drew the opposite conclusion for customer-initiated business: if the customer approaches the former employee, the statute protects accepting that work .
The opinion also treated employee solicitation differently from customer solicitation for protected workers. It held that § 40.1-28.7:8 prevented enforcement of a covenant barring the former worker from soliciting Sentry Force's other employees .
Use Sentry Force carefully. It is an unpublished Court of Appeals memorandum opinion, so it is useful Virginia-specific guidance but has limited precedential weight; draft customer provisions to target employee-initiated solicitation, not passive acceptance of customer-initiated work.
Leave the employee non-solicitation covenant switched off unless you have confirmed the worker is outside § 40.1-28.7:8's protected class. The only Virginia appellate reading on point treats an employee non-solicit as a covenant not to compete for a protected worker: in unpublished Sentry Force Security, LLC v. Barrera, the Court of Appeals held the statute prevented enforcing a covenant barring a departed protected worker from soliciting the employer's other employees . Switch it on only after that check clears; the worker-protection gates in the OpenAgreements Virginia restrictive covenant form still control if you get it wrong.
The customer non-solicitation covenant reaches only the worker's own initiation or solicitation, and the worker-protection gates preserve customer-initiated business, because that is the line the statute draws: a bar on direct, employee-initiated solicitation survives even assuming the worker is protected, while customer-initiated business cannot be blocked. The optional no-business-with-covered-customers covenant bars serving a customer even when the customer calls first — the exact conduct the carve-out preserves — so it collides head-on with the statute for any protected worker and defaults off; include it only for a worker outside the protected class as a deliberate risk decision.
Sources for this answer
Primary source · Primary law
F.1 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports the statutory customer-service carveout when the former employee does not initiate contact with or solicit the customer.
shall not restrict an employee from providing a service to a customer or client of the employer if the employee does not initiate contact with or solicit the customer or client.
See Va. Code Ann. § 40.1-28.7:8(A). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Case law · 2026-01-27
F.2 Sentry Force Security, LLC v. BarreraPDFSentry Force supports the unpublished Court of Appeals reading that § 40.1-28.7:8 does not prevent an employer from barring direct customer solicitation by a former low-wage employee.
Thus, even assuming Barrera is a low-wage employee for the purposes of this interlocutory appeal (as the parties do), Barrera cannot solicit his former employer’s customers for his own company.
See Sentry Force Sec., LLC v. Barrera, Record No. 1405-24-4, slip op. at 14 (Va. Ct. App. Jan. 27, 2026) (unpublished).
Primary source · Case law · 2026-01-27
F.3 Sentry Force Security, LLC v. BarreraPDFSentry Force supports the unpublished Court of Appeals distinction that customer-initiated business cannot be blocked under § 40.1-28.7:8.
In short, if the customer approaches the former employee with its business, the former employee is not restricted from accepting that customer’s business—and doing work for that customer of the former employer.
See Sentry Force Sec., LLC v. Barrera, Record No. 1405-24-4, slip op. at 15 (Va. Ct. App. Jan. 27, 2026) (unpublished).
Primary source · Case law · 2026-01-27
F.4 Sentry Force Security, LLC v. BarreraPDFSentry Force supports the unpublished Court of Appeals holding that § 40.1-28.7:8 prevents enforcement of a covenant barring a protected worker from soliciting the employer's other employees.
However, we affirm the circuit court’s decision on Sentry Force’s second assignment of error because Code § 40.1-28.7:8 does prevent Sentry Force from enforcing a “covenant not to compete” agreement against Barrera that stops Barrera (after he left Sentry Force) from soliciting Sentry Force’s other employees.
See Sentry Force Sec., LLC v. Barrera, Record No. 1405-24-4, slip op. at 20 (Va. Ct. App. Jan. 27, 2026) (unpublished).
What can Virginia employers use instead of a non-compete?
Virginia employers can still use properly tailored nondisclosure, confidentiality, and trade-secret protections. Section 40.1-28.7:8 expressly preserves nondisclosure agreements aimed at misappropriation and sharing of trade secrets, proprietary information, and confidential information .
That alternative has its own limits. The Virginia Uniform Trade Secrets Act defines a trade secret as information with independent economic value from not being generally known and subject to reasonable secrecy efforts . It also permits injunctions for actual or threatened misappropriation, but those injunctions are tied to the trade-secret problem rather than a general ban on competition .
Keep confidentiality and trade-secret covenants separate from a work ban. A clause labeled as confidentiality can still create non-compete risk if it restrains ordinary competition rather than protecting specific confidential, proprietary, or trade-secret information.
Sources for this answer
Primary source · Primary law
G.1 Va. Code § 40.1-28.7:8Va. Code § 40.1-28.7:8 supports preserving nondisclosure agreements aimed at trade secrets, proprietary information, and confidential information.
Nothing in this section shall serve to limit the creation or application of: 1. Nondisclosure agreements intended to prohibit the taking, misappropriating, threatening to misappropriate, or sharing of certain information to which an employee has access, including trade secrets, as defined in § 59.1-336, and proprietary or confidential information
See Va. Code Ann. § 40.1-28.7:8(H)(1). (2020 Va. Acts cc. 948, 949; 2025 Va. Acts c. 585; 2026 Va. Acts cc. 883, 1113, 1114.)
Primary source · Primary law
G.2 Va. Code § 59.1-336Va. Code § 59.1-336 supports the economic-value and reasonable-secrecy elements of Virginia's statutory trade-secret definition.
Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and 2. Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
See Va. Code Ann. § 59.1-336.
Primary source · Primary law
G.3 Va. Code § 59.1-337Va. Code § 59.1-337 supports injunctive relief for actual or threatened trade-secret misappropriation.
Actual or threatened misappropriation may be enjoined.
See Va. Code Ann. § 59.1-337(A).