Non-Solicitation Clauses in Virginia: Current Legal Standards

Virginia's Evolving Restrictive Covenant Law

Virginia enacted Virginia Code Section 40.1-28.7:8 effective July 1, 2020, which prohibits non-compete agreements for low-wage workers (those earning less than the average weekly wage). While this statute targets non-competes specifically, non-solicitation agreements in Virginia are primarily governed by a well-developed body of common law.

Virginia's Common Law Framework

Virginia courts have addressed non-solicitation clauses in cases such as Omniplex World Services v. US Investigations Services and Assurance Data v. Malyevac, applying a strict but fair reasonableness standard:

• Function, not label: Virginia courts look at what a restrictive covenant actually does, not how it is titled. A clause labeled "non-solicitation" that effectively prevents all competition will be treated as a non-compete
• Narrowly drawn: The clause must be no broader than necessary to protect the employer's legitimate business interest
• Adequate consideration: For new employees, the job is sufficient. For existing employees, continued employment has generally been held sufficient in Virginia, though additional consideration strengthens enforceability
• Reasonable duration: One to two years is the typical enforceable range
• Legitimate interest: Customer relationships, trade secrets, and confidential information qualify

Virginia's Strict Construction Approach

Virginia courts strictly construe restrictive covenants against the employer. Ambiguities are resolved in favor of the employee. Unlike some states, Virginia courts have been reluctant to reform overbroad restrictive covenants, though recent decisions have shown some movement toward allowing partial enforcement.

Red Flags

• A non-solicitation clause imposed on a low-wage worker that functions as a non-compete
• Restrictions extending to all customers of the company
• Ambiguous language (which Virginia courts will construe against the employer)
• Duration exceeding two years
• No clear limitation to customers the employee actually served

When to Consult a Lawyer

Consider consulting a Virginia employment attorney if you are a lower-wage worker asked to sign a restrictive covenant, if your non-solicitation clause seems broad enough to function as a non-compete, or if a former employer is threatening enforcement and you believe the clause is ambiguous or overbroad.

This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.