Drafting Non-Competes Is Risky Business


For those of you who draft, work with and seek to enforce restrictive covenants, pay particular attention to the recent November 2011 Virginia Supreme Court decision in Home Paramount Pest Control Companies, Inc. v. Shaffer.

At first blush, the case appears to be nothing more than another decision in a long line of recent decisions in which the Court rules in favor of the employee against the employer by finding the non-compete provision in an employment agreement over broad and therefore unenforceable. However, this decision commands attention because in it the Court considered the very same provision for the very same company that it considered in another non-compete case in 1989. In 1989, the Court held that provision enforceable. In last week’s decision, the court found the same provision unenforceable.

So what was different? Well, obviously the particular employee was, and this made a difference with the Court’s assessment of the duties and functions this particular employee had with the employer. The Court consistently applies the same basic test of enforceability for non-competes: Is it “narrowly drawn to protect the employer’s legitimate business interests, not unduly burdensome on the employee’s ability to earn a living, and not against public policy?” The court evaluates these limitations based on geographic scope, time duration and function.

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

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.

© Sands Anderson PC | Attorney Advertising

Written by:


Sands Anderson PC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.