![\"Williamsburg](\"https:\/\/blog.tarleyrobinson.com\/wp-content\/uploads\/2010\/08\/Contract1.jpg\" "\\"Williamsburg")
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True enough, Virginia courts generally do not enforce unduly broad or overreaching employee agreements not to compete because they are contrary to the public policy of the Commonwealth of Virginia.\u00a0 Such agreements are \u201cdisfavored in the law\u201d and are strictly construed by Virginia courts.\u00a0 Why?\u00a0 Because covenants not to compete are frequently coerced from employees in exchange for the \u201cprivilege\u201d of working for the employer, never mind the employee is providing services to the employer and does not usually receive any separate consideration, or payment, for giving the non-compete. Further, they are disfavored because they are restraints of trade that affect the employee\u2019s ability to earn a livelihood, restrict others from obtaining the employee\u2019s services, and deny the public the benefit of such services.<\/p>\n
Employee non-competition agreements are enforceable in Virginia where the agreements (1) are narrowly drawn to protect the employer\u2019s legitimate business interest, (2) are not unduly burdensome on the employee\u2019s ability to earn a living, and (3) are not against public policy.\u00a0\u00a0 Further, Virginia courts, unlike the courts of some states, will not rewrite, or \u201cblue pencil,\u201d them to make them enforceable.<\/p>\n
Whether a non-competition agreement is unduly broad or is unduly restrictive of an employee\u2019s ability to earn a living is fact based.\u00a0 Generally, however, where the restricted geographic boundary, occupational limitation or time limitation extends beyond any legitimate employer interest, or where the agreement prevents all or substantially all employment in the employee\u2019s field of endeavor within a reasonable geographic area, the non-competition agreement will generally not be enforced.<\/p>\n
Where Virginia courts find covenants not to compete enforceable, they will use their injunctive power to keep employees and prospective employers from violating them.\u00a0 Further, they will enforce liquidated damage provisions for breach of contract where the actual damages contemplated at the time of the agreement are uncertain and difficult to determine with exactness and where the amount fixed is not out of all proportion to the probable loss.\u00a0 Finally, Virginia courts will enforce choice of law clauses where such clauses are not unconscionable.<\/p>\n
Enforceability is not the end of the matter, however, either for the employee subject to the agreement, the company to which the duty not to compete is owed, or the prospective employer of such an employee.\u00a0 There are many more issues potentially seriously affecting the employer, the employee, and the prospective employer.\u00a0 These involve general contract law, duties of good faith, fair dealing and loyalty, tortuous interference with contract and business expectancy, common law and statutory conspiracy, and trade secret law.\u00a0 Thus, employees with non-competition agreements and employers who seek to employ them are well advised to seek legal counsel as to the potential issues and ramifications that are fact specific to the employee and the prospective employer.<\/p>\n