Employee Restrictive Covenant Agreement
Cover Terms
The terms below are incorporated into and form part of this agreement.
| Employer | [Legal name of the entity that employs the employee] | ||||||||
| Employee | [Full legal name of the employee] | ||||||||
| Employee Title / Position | |||||||||
| Effective Date | [Effective date of this agreement — the date the last party signs. It anchors the duration presumptions stated in Cover Terms.] | ||||||||
| Governing Law | West Virginia | ||||||||
| New Consideration (if signed after hire) | State-law basisReference only — not part of this agreement. Left blank by default because a covenant signed at hire may not require a separate payment. For a post-hire covenant, recite any new consideration required by applicable law. | ||||||||
| Confidentiality | |||||||||
| Trade Secrets Duration | Perpetual | ||||||||
| Other Confidential Information Duration | 24 months | ||||||||
| Employee Non-Solicitation | |||||||||
| Duration | 24 monthsMarket benchmark HideShow
Why this selected default?Why is this the selected default?24 months matches the modal employee non-solicit term observed in benchmarked, publicly-filed employee agreements; 12 months is the common lighter alternative. The Act sets no express duration presumption for the no-hire category, so the uniquely-essential scope limit does the primary category work; counsel should size the term to the workforce interest actually protected. Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing. See all 3 examples in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark → | ||||||||
| Covered Employee Lookback | 12 months | ||||||||
| Customer Non-Solicitation | |||||||||
| Duration | 12 monthsState-law basis 12 monthsReference only — not part of this agreement. 12 months sits well inside the presumptively reasonable window for a current-customer non-solicit: eighteen months, or for as long as post-separation consideration is paid, whichever is greater. Counsel may extend toward eighteen months, or longer while post-separation consideration is paid, where the interest supports it. | ||||||||
| Covered Customer Lookback | 12 months | ||||||||
| No Business with Covered Customers | |||||||||
| Duration | 12 monthsState-law basis 12 monthsReference only — not part of this agreement. 12 months sits within the current-customer window. Because non-dealing has no category of its own, it is drawn to fit inside the current-customer non-solicit exception, and its duration tracks that category's presumption. | ||||||||
| Non-Investment | |||||||||
| Duration | 12 months | ||||||||
| Passive Public Holdings Threshold | five percentMarket benchmark HideShow
Why this selected default?Why is this the selected default?Five percent of any class of publicly traded securities is the modal passive-investment carve-out threshold observed in benchmarked, publicly-filed employee agreements that include the carve-out (lower 1-3 percent thresholds are the common tighter alternatives). In a state whose law voids restraints except as it specifically provides, a clause forbidding ordinary public shares is gratuitous overbreadth serving no listed interest. Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing.
Showing 3 representative examples. Company names link directly to the underlying SEC filing. See all 6 examples in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark →Showing 1 representative example. Company names link directly to the underlying SEC filing. See all 1 example in the complete benchmark → | ||||||||
| Non-Disparagement | |||||||||
| Duration | 24 months |
Standard Terms
1. Defined Terms
“Competitive Business” means the business activities described in Cover Terms under Competitive Business.
“Confidential Information” means non-public information relating to Employer's business, including trade secrets, customer lists, pricing, business processes, technical data, and strategic plans, but excluding information that becomes public through no fault of Employee and the general knowledge, skill, and experience Employee acquired during employment.
“Covered Customers” means customers, vendors, referral sources, and business partners with whom Employee had material contact or for whom Employee had responsibility during the 12 months before termination of employment.
“Covered Employees” means employees with whom Employee worked or whom Employee managed during the 12 months before termination of employment.
“Passive Public Holdings” means ownership of securities of a publicly traded company representing less than five percent of any class of such company's securities, and interests in diversified mutual funds, index funds, and exchange-traded funds that may hold securities of a Competitive Business.
“Protected Interests” means Employer's Protected Interests in its Trade Secrets and other Confidential Information, its customer lists, its customer goodwill, and any unusual training in which Employer has invested, and does not include Employee's general knowledge, skill, and experience.
“Restricted Period” means the duration specified in Cover Terms for each covenant, beginning on the date Employee's employment with Employer ends for any reason.
“Restricted Territory” means the geographic area described in Cover Terms under Restricted Territory.
“Solicit” means to directly or indirectly contact, approach, induce, encourage, or provide Confidential Information to any person or entity for the purpose of diverting business away from Employer, but does not include responding to general advertisements or unsolicited inquiries not initiated by Employee.
“Trade Secrets” means information that qualifies as a trade secret under applicable law.
2. Recitals and Protectable Interests
Employer and Employee acknowledge that each restrictive covenant in this agreement is ancillary to a valid employment relationship. Employee will receive access to Employer's Trade Secrets and other Confidential Information and will develop customer relationships and goodwill on Employer's behalf. Each covenant protects those Protected Interests.
Drafting Note Protectable interest comes first
A West Virginia covenant stands only on a concrete interest it protects. West Virginia has no general non-compete statute, and every post-employment restraint runs the two-stage Reddy inquiry: the employer must first show an interest requiring protection, and the restraint is then reasonable only if it is no greater than required, imposes no undue hardship on the employee, and is not injurious to the public . Trade secrets, customer lists, customer goodwill, and unusual employer-funded training qualify; general managerial, supervisory, merchandising, purchasing, and advertising skills do not, and publicly available customer information plus ordinary sales work fares no better . An acknowledgement or an irreparable-harm recital does not fill that gap — where the employer fails the protectable-interest gate, a court never reaches reasonableness . The gate also travels with an assignment: an assignee or successor must itself hold the protected interest before enforcing, and there is no statutory safe harbor to fall back on.
3. Timing, Consideration, and Employee Acknowledgements
This agreement is effective as of the Effective Date listed in Cover Terms. The parties acknowledge that this agreement is supported by adequate consideration. If this agreement is signed at the outset of employment, the offer and commencement of employment is the consideration for the covenants. If this agreement is signed after Employee's employment has begun, the consideration for the covenants is the new value stated in Cover Terms under New Consideration (if signed after hire). Employee acknowledges having had the opportunity to consult with independent legal counsel before signing this agreement.
Drafting Note Mid-employment consideration
A mid-employment West Virginia covenant depends on separate consideration documented in the agreement itself. A raise, bonus, promotion, equity grant, term extension, or other benefit must be real and covenant-linked; merely continuing the job is the fact pattern Environmental Products rejected . Consideration left blank or implied when the covenant comes mid-employment is the vulnerable case: in the OpenAgreements West Virginia restrictive covenant form, the specific value belongs in the New Consideration (if signed after hire) cover term, and in any form the instrument that recites the value stands on firmer ground than one reconstructed in litigation. The rule follows the covenant forward — an amendment that re-papers a covenant after employment has begun is itself a covenant contracted mid-employment and needs new consideration of its own . And adequate consideration only shows the covenants are supported; it does not substitute for the independent reasonableness showing each covenant must still make.
4. Confidential Information and Trade Secret Protection
Employee must treat all Confidential Information as strictly confidential. Employee must not use or disclose Confidential Information except as required to perform authorized job duties or with Employer's prior written consent. Employee's obligations regarding Trade Secrets continue for the period specified in Cover Terms under Trade Secrets Duration. Employee's obligations regarding other Confidential Information continue for the period specified in Cover Terms under Other Confidential Information Duration. This section operates alongside, and independent of, the restrictive covenants in this agreement, and it does not restrict Employee's use of the general knowledge, skill, and experience Employee acquired during employment.
Drafting Note The trade-secret statutory overlay
Trade secrets and ordinary confidential information carry different durations: trade-secret obligations can run for as long as the information remains a trade secret, but a perpetual lid on non-secret information can operate as a practical non-compete, so ordinary confidential information holds up only under its own finite term tied to actual confidential information rather than to the worker's ability to do similar work . The statutory overlay matters at enforcement time: the West Virginia Uniform Trade Secrets Act displaces conflicting tort, restitutionary, and other civil remedies for misappropriation of a trade secret but does not affect contractual remedies, so a confidentiality covenant supplies a contract claim that runs alongside the statutory one . The act also lets a court award reasonable attorney's fees where a misappropriation claim is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation occurs — independent of any contractual fee clause; absent contractual fee-shifting each side bears its own costs, so a fee clause that is mutual and prevailing-party based carries the intended effect .
5. Permitted Disclosures and Protected Conduct
Nothing in this agreement prohibits Employee from: (a) reporting possible violations of law to any government agency, including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the Occupational Safety and Health Administration, or any other federal, state, or local agency; (b) making disclosures protected under whistleblower provisions of any law; (c) discussing wages, hours, or other terms and conditions of employment as protected by applicable law, including Section 7 of the National Labor Relations Act (29 U.S.C. § 157); (d) testifying truthfully in legal proceedings; (e) responding to a subpoena, court order, or lawful demand of a government agency, with notice to Employer where permitted by law; or (f) filing a sealed complaint in court using Confidential Information without liability. Pursuant to the Defend Trade Secrets Act (18 U.S.C. § 1833(b)), Employee may not be held criminally or civilly liable for disclosing a trade secret in confidence to a government official or attorney solely for the purpose of reporting or investigating a suspected violation of law, or in a sealed court filing.
6. Return, Deletion, and Certification of Company Property
Upon termination of employment, Employee must promptly return to Employer all documents, devices, files, credentials, and other materials containing or relating to Confidential Information. Where permitted, Employee must permanently delete electronic copies of Confidential Information from personal devices and accounts. Employee must certify compliance with this section in writing upon Employer's request.
7. Non-Solicitation of Employees
During the Restricted Period, Employee must not Solicit, recruit, hire, or attempt to hire any Covered Employee. This restriction does not prohibit Employee from providing a professional reference upon request or from hiring a person who responds to a general advertisement not directed specifically at Employer's employees.
8. Non-Solicitation of Customers, Vendors, Referral Sources, and Business Partners
During the Restricted Period, Employee must not Solicit the business of any Covered Customer with whom Employee had material contact or for whom Employee had responsibility. This covenant does not bar Employee from working in Employee's field or from engaging in business generally.
Drafting Note Customer clauses inside the non-piracy frame
Forms drafted for other states often bolt a territory or a field-of-work bar onto a customer non-solicit; in West Virginia that added territory forfeits the lighter non-piracy review, because a customer restriction earns that treatment by following customers and confidential information rather than a map, ordinarily with no territorial limit . The lighter treatment is earned, not presumed: validity still turns on whether the employer has a protectable interest, how reasonably and fairly the provision protects it, and whether it unjustly restricts the worker's chosen business activity — and a customer clause that effectively bars similar work in a territory is reviewed as the non-compete it functions as. A no-business-with-covered-customers clause stands on the same footing: because it reaches even customer-initiated business, it sits outside the non-piracy frame, and a clause of that reach survives only as a deliberate risk decision sized tightly to the goodwill it protects.
9. No Business with Covered Customers
During the Restricted Period, Employee must not accept, service, or do business with any Covered Customer with whom Employee had material contact or for whom Employee had responsibility, regardless of who initiates contact.
10. Non-Investment
During the Restricted Period, Employee must not acquire or hold any active ownership interest in, serve as a director, officer, manager, or advisor to, or have material economic participation in any Competitive Business. Passive Public Holdings below the threshold stated in Cover Terms are permitted.
11. Non-Disparagement
During the Restricted Period specified in Cover Terms for Non-Disparagement, Employee must not make statements that are intended to or reasonably likely to disparage Employer, its officers, directors, employees, products, or services. This section does not restrict Employee from making truthful statements in legal proceedings, providing truthful testimony, making disclosures to government agencies, or exercising rights protected by law, including rights protected under Section 7 of the National Labor Relations Act.
12. Physician and Health Care Practitioner Covenants
If Employee is a physician, any covenant not to compete is limited to one year and thirty road miles from Employee's primary place of practice with Employer and does not apply if Employer terminates Employee's employment. These limitations do not apply to a covenant Employee gives in connection with the sale of Employee's business or practice or to a covenant among physicians who are owners of a health care practice.
Drafting Note Physician covenant limits and their triggers
West Virginia caps a physician covenant at one year and thirty road miles and voids it entirely on employer-initiated termination — a duration or territory entered above those limits falls outside the statutory cap. The trigger is broad: the article reaches any physician-employer contract entered into, modified, renewed, or extended on or after July 1, 2017, so a routine amendment or renewal pulls an older contract inside the cap . The cap is not the whole clause: unless the contract states otherwise, the statute preserves provisions on employer property, patient lists, and records, repayment obligations, nondisclosure of confidential information and trade secrets, patient and employee non-solicits, and liquidated damages — and a return-of-property certification is the cleanest contemporaneous evidence if protected material later surfaces at a competitor . The sale-of-practice and physician-owner exemptions lift the limits only where the contract does not provide otherwise .
13. No Conflicting Obligations
Employee represents that performing duties for Employer and complying with this agreement does not conflict with any prior agreement, court order, or legal obligation binding on Employee. Employee must promptly disclose to Employer any potential conflict that arises during employment.
14. Notice to Future Employers and Other Third Parties
Employer may disclose the existence and terms of this agreement to any prospective employer or business associate of Employee if Employer has a reasonable belief that Employee may breach this agreement. Employee consents to this disclosure.
15. Tolling During Breach
If Employee breaches any restrictive covenant in this agreement, Employer may seek to have the Restricted Period for that covenant equitably extended by the period of the breach. Any extension is limited to the period of the breach, and no extension enlarges any physician covenant beyond the limits stated in the Physician and Health Care Practitioner Covenants section.
16. Remedies
Employee acknowledges that a breach of this agreement may cause Employer irreparable harm for which money damages would be inadequate, and that Employer may seek injunctive or other equitable relief in addition to any other remedies available at law. Any fee-shifting between the parties under this agreement is mutual and prevailing-party based.
17. Enforceability and Severability
If any provision of this agreement is found to be unenforceable, the remaining provisions remain in full force and effect.
18. Survival and Expiration of Each Covenant
Each restrictive covenant in this agreement survives the termination of Employee's employment for the Restricted Period specified in Cover Terms. Obligations under the Confidential Information and Trade Secret Protection section survive to the extent they relate to Trade Secrets, for as long as the information remains a trade secret. All other provisions survive to the extent necessary to enforce rights that arose during employment.
19. Assignment and Successors
Employee may not assign this agreement or any rights or obligations under it. Employer may assign this agreement to any affiliate, successor, or acquirer of all or substantially all of Employer's business or assets. This agreement is binding on and inures to the benefit of the parties and their respective heirs, successors, and permitted assigns.
20. Governing Law, Venue, and Dispute Process
This agreement is governed by the law listed in Cover Terms. Disputes will be resolved in the courts of the Governing Law state, subject to non-waivable rights under applicable law.
21. Entire Agreement, Amendment, Waiver, and Electronic Signatures
This agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements, understandings, and negotiations on this subject. This agreement may be amended only in writing signed by both parties. A party's failure to enforce any provision does not waive that party's right to enforce it later. This agreement may be executed in counterparts, including by electronic signature, each of which is an original.
Signatures
By signing this agreement, each party acknowledges and agrees to the restrictive covenant obligations above. Employee confirms having read and understood each provision, including the Cover Terms.
Employer
Employer: [Legal name of the entity that employs the employee]
Signature:
Signatory Name: [Full name of the authorized signatory signing for the employer]
Title: [Title of the authorized signatory signing for the employer]
Date:
Employee
Signature:
Print Name: [Full legal name of the employee]
Date: