Non-Compete Agreement Virginia


    In addition to accuracy, another precondition for the validity of a non-competition agreement is that each party must take sufficient account of it. Reflection is the legal name for something valuable that each party must offer to create a contract. It makes sense, because it would not be fair to keep one side of a promise that made it, unless the other side provided something valuable. An employer cannot reconstitute itself for breach by a worker of a non-compete clause without providing proof of injury. The actual (monetary) harm can be proven by cases of “successful competition” – a competition between a former employee that results in injury. Where an employer has demonstrated that it has breached an existing non-competition agreement and has proven that it has suffered actual harm, it may seek damages for the amount of the agreement, which often contains liquidated (double) non-competition clauses. Many companies use “non-compete agreements” or “non-compete agreements” (`NCCs`), legally referred to as alliances (or promises) not to compete in employment contracts. NCCs can be wide or narrow in their scope. And they can add different contingencies when they apply or not.

    Since NCAs are – at least in theory – the outcome of the negotiation, they can vary considerably from contract to contract, even in the same area of business or employer. That`s why non-competition bans need to be carefully developed and stretched to be enforced in Virginia. In all cases, the employer bears the burden of proof that the agreement is binding in writing. The court will not amend the written terms (“blue pencil”) to clarify its meaning, adapt it to the law or reflect the intent of the parties. Recent court decisions in Virginia have followed a national trend to strengthen applicability standards so as not to restrict trade and employment. However, as noted in our November article, a Virginia court will not summarily rule on a non-compete agreement without giving the employer a evidenty hearing to understand why the agreement should be applied. Therefore, even if a non-compete agreement is not applicable on their face, the worker may be put in a very difficult situation to have to choose between (a) compliance with the excessive limitation or (b) of a major bill against the employer. In addition, potential employers may be reluctant to hire a person subject to a non-compete clause regardless of the benefits of the non-compete clause, since the new employer could also be named in a complaint filed by the former employer. For example, a court is more likely to authorize the broader geographic application of a non-competition agreement if it persists for a short period of time or if the employer awards the worker a significant consideration, such as a high cash payment.