Fighting Noncompete Agreements in Virginia: How Employees Can Challenge Enforceability in Virginia State Courts

by | Dec 4, 2025 | Business Litigation

Overview of Noncompete Agreements and Their Purpose

Noncompetition agreements are contracts in which an employee agrees not to engage in certain competitive activities after leaving an employer. Employers are supposed to use them to protect legitimate business interests, such as unfair competition, trade secrets, confidential information, client relationships, and the goodwill the employer has developed. In reality, however, employers often use them to shackle employees from leaving to improve their livelihoods and as weapons to stifle free market competition.

Fortunately for workers, in Virginia courts, noncompetes are generally disfavored as restraints on trade but may be enforced if they are narrowly tailored to protect legitimate interests without unduly burdening the employee or harming the public.

Key Elements of Enforceability in Virginia

Virginia courts evaluate whether noncompetes are legal with a fact-intensive, case-by-case, three-part reasonableness test focused on scope and balance.

To be enforceable, a noncompete must be: 1. Narrowly drawn to protect the employer’s legitimate business interests; 2. Not unduly burdensome on the employee’s ability to earn a living; and 3. Not contrary to public policy.  Crucially, the employer (not the employee) bears the burden of proving enforceability of the contract and justifying the enforcement against a particular employee.

When looking at these factors, courts look at the scope of what an employee is restricted from doing and whether is “overbroad.”  Restrictions typically have three components: a) Function (the specific activities/services the employee is barred from performing); b) Geographic scope (the territories or areas where an employee or work is restricted); c) Duration (the time period of the restriction after separation).

If the restrictions are supported by adequate consideration (money or value), limited to legitimate business interests (such as confidential information, actual competition with the prior employer, an employee’s prior job duties, customer contacts, or specialized training), and drafted with clear, limited scope, they are more likely to be upheld. Overbroad restraints that prohibit ordinary competition, restrict work unrelated to the employee’s prior role, or exceed the employer’s actual market footprint are less likely to survive.

Importantly, most noncompetes have a term that says that if a court finds a restriction overbroad, it can be re-written rather than struck.  However, Virginia courts generally refuse to “blue pencil” or rewrite overbroad noncompetes.  If a restriction is facially unreasonable, courts typically refuse to enforce it.

Common Reasons for Successful Challenges of Noncompetes in Virginia Courts

Some of the common reasons that Virginia employees can successfully challenge noncompetes are on grounds such as:

  1. The functional scope is overbroad (e.g., prohibiting any role in an industry or new company, regardless of similarity to the former job).
  2. The geographic scope exceeds the employer’s actual market or the area where the employee worked previously in a defined territory of customer contacts.
  3. The duration is longer than necessary to protect legitimate interests.
  4. The employer lacks a protectable interest (e.g., no access to trade secrets or confidential information, or the information is publicly available).
  5. The agreement is vague or ambiguous, making it impossible to determine what conduct is prohibited. Or, if an ambiguity is interpreted broadly, it would be an unreasonable or irrational restriction.
  6. The restraint unduly impairs the employee’s ability to earn a living in their field.
  7. The agreement violates public policy (including statutory constraints, such as Virginia’s ban on noncompetes for certain low-wage employees).

Practical Advice for Employees Considering a Challenge

  • Do not assume enforceability or unenforceability; have the agreement evaluated promptly by counsel, ideally before taking a new, competitive position.
  • Avoid using or taking any employer confidential information especially “trade secrets.” Scrupulous conduct strengthens your position. (Walk out “naked” from your prior job, as some lawyers like to say).
  • Be transparent with prospective employers about a noncompete; share the agreement so they can structure new duties to minimize risk of violation of a legitimate noncompete (and if possible, get them to agree to evaluate it for you).
  • If practicable, propose to a prior employer targeted carve-outs (for example, limiting to specific clients you serviced or to a defined product line) to resolve disputes without litigation.

 

If you have a personal injury case, please call our firm. We are here to help you with your case. We handle such cases all throughout Virginia, including in Roanoke City and County, Montgomery County (Christiansburg, Blacksburg), Lynchburg, Abingdon, Martinsville, Rocky Mount, Wytheville, Bedford, Covington, Harrisonburg, Richmond, Charlottesville, Lexington, or Staunton. We also practice in areas such as Bath County, Campbell County, Giles County, Craig County, Smyth County, Alleghany County, Pulaski County, Franklin County, Campbell County, Carroll County, Patrick County, Floyd County, Stuart County, Pittsylvania County, Henry County, and Wythe County. We also litigate in Virginia federal courts, including those divisions in Roanoke, Abingdon, Danville, Harrisonburg, Charlottesville, Alexandria, and Richmond.