Non-Compete Agreements And Restrictive Covenants

Serving Clients in Virginia Beach, Hampton Roads, Washington D.C. & Throughout the U.S.

One of the most important tasks for our Virginia Beach business law attorney is helping employees negotiate a fair and reasonable contract with their future employers. These employment contracts govern the terms of your work with your employer, and that obviously makes them incredibly important.

Front view of employer pointing to a contract

Among the minefields you need an experienced attorney to help you navigate is the non-compete agreement, as well as other so-called restrictive covenants. These non-compete clauses are growing in popularity, especially among the defense contractors and other high-tech firms of Northern Virginia. It's important that you have experienced representation on your side when the prospective employer proposes a non-compete clause.

If you need an experienced business law attorney to help with your employment contract negotiation in the Virginia Beach, Virginia area, please call James H. Shoemaker, Jr. Attorney at Law today at 757.223.4560.

What is a Restrictive Covenant?

In the context of employment law, “restrictive covenant” is a broad term that refers to any restriction on an employee's ability to conduct business in the field after leaving the employer in question. These are usually variations on a non-compete clauses and include provisions like:

  • Non-solicitation
  • Non-disclosure

A non-compete agreement is the most common version of a restrictive covenant. A non-compete clause restricts the employee's ability to compete with the company in the event he or she leaves the company's employ.

So, for example, if Employer X is a company that makes widgets, it might ask employees to sign a non-compete clause that restricts their ability to work for a competing widget manufacturer or to open their own widget company.

Depending on the employee's specific role, the non-compete clause might be more limited in scope – for example, an employee involved in the research and design of widgets might have a non-compete clause saying that he or she will not be able to join the R&D division of another widget company.

There are a number of variations on these themes, and the clauses can get very complex, very quickly. It's important that you have an experienced attorney on your side to read over these clauses and advise you on the wisdom of signing the contract.

Are These Clauses Enforceable?

These restrictive covenants have grown increasingly controversial in employment law over the last several years. More and more companies are putting these provisions in their contracts, and the provisions themselves are growing in scope.

Put another way, these provisions are getting awfully lopsided against employees, and courts are getting increasingly skeptical of restrictive covenants. In Virginia, non-compete clauses are enforceable only if an employer can show:

Mature businessman and young business woman discussing
  • That the restriction is no greater than is necessary to protect the employer's legitimate business interest
  • The agreement is not unduly or unreasonably restricting the employee's ability to find work or make a living
  • The clause doesn't violate a clear mandate of Virginia public policy

The burden of proof is on the employer to justify the non-compete clause. But this doesn't mean that these cases are simple or that you can sign any clause without worrying about the provision being enforced. It's still vital that you have the contract and its provisions carefully reviewed by our business law attorney before signing it.

If you're considering signing an employment contract in the Virginia Beach, Virginia area, you should talk to our business law attorney as soon as possible. Please call James H. Shoemaker, Jr. Attorney at Law today at 757.223.4560.

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