Non-Disparagement Clauses in Virginia: What Courts Look For
Virginia courts enforce non-disparagement clauses under general contract principles, and the state's treatment of restrictive covenants provides useful context for understanding the enforceability landscape.
Virginia's Approach
Virginia does not have a specific statute governing non-disparagement clauses. Courts evaluate them under common law contract principles, looking at standard elements like offer, acceptance, consideration, and mutual assent.
For restrictive covenants more broadly, Virginia has adopted a strict construction approach. Under Virginia case law, including Omniplex World Services Corp. v. US Investigations Services, Inc. (618 S.E.2d 340), courts narrowly construe restrictive covenants and resolve ambiguities in favor of the restricted party. This means poorly drafted non-disparagement clauses may be interpreted narrowly.
Virginia also enacted a non-compete ban for low-wage workers effective July 1, 2020 (Va. Code Section 40.1-28.7:8), though this specifically targets non-compete agreements rather than non-disparagement clauses.
Enforceability Factors
- Strict construction: Virginia courts read restrictive covenants narrowly. Vague or ambiguous non-disparagement language may be construed against the drafter.
- Consideration: Adequate consideration is required. Virginia courts generally recognize continued at-will employment as sufficient for restrictions signed at hire, but post-employment restrictions require new consideration.
- Narrowly tailored: The clause must be no broader than necessary to protect the party's legitimate interests.
- No blue penciling: Virginia traditionally does not reform overbroad restrictive covenants. If the clause is unreasonable, it may be void in its entirety.
Red Flags
- Ambiguous language about what constitutes disparagement (likely to be construed against the drafter)
- No explicit consideration for post-employment non-disparagement obligations
- Restrictions on truthful statements to government agencies
- Indefinite duration without a reasonable time limit
When to Consult a Lawyer
Virginia's strict construction approach means the specific language in your non-disparagement clause matters greatly. Consider consulting a Virginia attorney, particularly if the clause is part of a severance or settlement agreement, to understand how a court might interpret the specific terms.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.