Dispelling Employment Myths Series – Issue 2: Non-Compete Agreements

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Ever play the game telephone? It’s a game in which one person whispers something into the ear of the next person, and that person is supposed to whisper the same thing into the ear of the next person, and so on. When the group gets to the last person, he or she is supposed to tell the group what was said.  Invariably, the final statement is completely different from the initial one. The same thing often happens with respect to people’s understanding of the law – specifically workplace or employment law.

This blog series is meant to address some of the common misconceptions about employment law that float around, and correct any misunderstandings. For the most part, there’s nothing very new about the issues in this series. However, most employment lawyers have heard friends in casual conversation or clients make inaccurate statements about employment law. These misunderstandings can often lead clients into trouble.

You can read the other myths in the series here.

Employment Myth #2: “This non-compete agreement is unenforceable because Virginia is a right to work state.”

Virginia is a “right to work state” but non-compete agreements or any restrictive covenants have nothing to with that fact. Virginia is one of 24 right to work states. Virginia Code section 40.1-58 codifies that the right of an individual cannot be abridged based on that individual’s membership in or lack of membership in a labor union or labor organization.

The right to work concept does not render a non-compete or non-solicitation provision unenforceable. In fact, it has no applicability with respect to non-compete or non-solicitation agreements. While Virginia courts do not favor such agreements, they will enforce them if they are narrowly tailored to protect the legitimate interests of the employer without impinging on the employee’s ability to make a living. Like most things in law, the devil is in the details, and I’ll leave the details of what makes restrictive covenants enforceable to another post.

 


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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