Virginia Non-Compete Agreement

Introduction

Key Things to Know

1. 1

   A non-compete keeps a former employee from competing with the business for a set time and area. Virginia enforces one only against higher earners, and because its courts do not blue-pencil, an overbroad covenant is struck down whole rather than trimmed.

2. 2

   Code of Virginia Section 40.1-28.7:8 makes it unlawful for an employer to enter into, enforce, or threaten to enforce a covenant not to compete with a low-wage employee or a health care professional. An ordinary low-wage employee non-compete cannot be enforced in Virginia.

3. 3

   A low-wage employee is a worker whose average weekly earnings are less than the average weekly wage of the Commonwealth (Section 65.2-500(B)), or anyone entitled to federal overtime (29 U.S.C. Section 207) regardless of pay. For 2026 that wage benchmark is roughly $1,500 per week, about $78,000 a year. Confirm the current Virginia figure and do not import another state's number.

4. 4

   For an employee outside the protected groups Virginia sets no fixed statutory time or distance limit. Courts in Virginia generally enforce a non-compete only if the employer shows it is no greater than necessary to protect a legitimate business interest, does not unduly burden the employee's ability to earn a living, and is reasonable under sound public policy.

5. 5

   Virginia requires the employer to post a copy of the statute (Section 40.1-28.7:8(G)) and imposes no advance-notice or waiting period before signing. Courts in Virginia generally treat the offer of employment, and often continued employment, as consideration, but the restraint is still tested for reasonableness.

6. 6

   Virginia does not blue-pencil non-competes. Courts in Virginia generally will not rewrite or narrow an overbroad covenant to save it; if the function, geography, or duration is too broad, the whole covenant is likely struck down. Draft it narrowly rather than counting on a court to fix it.

7. 7

   A separate rule (Section 40.1-28.7:8(C)) makes any non-compete unenforceable if the employer discharges the employee without cause and without severance or other monetary payment. Where a non-compete is void or risky, Virginia employers protect confidential data through a confidentiality agreement and the Virginia Uniform Trade Secrets Act (Section 59.1-336 et seq.).

Virginia Requirements for Non-Compete Agreement

• Enforceable Only for Higher Earners

  In Virginia an employee non-compete is enforceable only for higher earners and only if it is reasonable. Code of Virginia Section 40.1-28.7:8 makes it unlawful to enter into, enforce, or threaten to enforce a covenant not to compete with a low-wage employee or a health care professional. An ordinary low-wage employee non-compete cannot be enforced in Virginia.

• Low-Wage Threshold Tracks the Commonwealth Wage

  A non-compete is void for a low-wage employee, defined as a worker whose 52-week average weekly earnings are less than the average weekly wage of the Commonwealth (Section 65.2-500(B)). The statute pins a formula, not a fixed dollar figure: for 2026 that benchmark is roughly $1,500 per week, about $78,000 a year, and it changes annually. Confirm the current Virginia Employment Commission figure, and do not rely on any other state's salary number.

• Overtime-Eligible and Health Care Workers Are Protected

  As of July 1, 2025 any employee entitled to overtime under the federal Fair Labor Standards Act (29 U.S.C. Section 207) is a low-wage employee for this statute regardless of pay, and as of 2026 a non-compete is void for any health care professional licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work. Treat a non-compete as unenforceable for these workers in Virginia.

• Reasonableness Test for Everyone Else

  For an employee outside the protected groups, Virginia sets no fixed statutory time or distance. Courts in Virginia generally enforce a non-compete only if the employer shows it is no greater than necessary to protect a legitimate business interest, does not unduly burden the employee's ability to earn a living, and is reasonable in light of sound public policy (Omniplex World Services v. US Investigations Services, 270 Va. 246 (2005)). A narrow, purpose-tied restriction is far more likely to hold up.

• Virginia Does Not Blue-Pencil

  Virginia does not blue-pencil non-competes. Courts in Virginia generally will not rewrite, narrow, or reform an overbroad covenant to make it enforceable, and they construe an ambiguous restraint against the employer that drafted it. If the function, geographic scope, or duration is broader than necessary, a Virginia court is likely to strike the entire covenant. Draft the restriction narrowly rather than counting on a court to fix it.

• No Signing Notice; Poster Required

  Virginia imposes no advance-notice or waiting period before signing, but Section 40.1-28.7:8(G) requires the employer to post a copy of the statute where other employee notices appear. Courts in Virginia generally treat the offer of employment, and often continued employment, as consideration, though the restraint is still tested for reasonableness. Because there is no statutory review window, read any non-compete carefully before signing.

• Discharge Without Cause and Without Severance

  A 2026 rule (Section 40.1-28.7:8(C)) makes any non-compete unenforceable if the employer discharges the employee without cause and without providing severance or other monetary payment. This applies at all wage levels, not just low-wage employees. If you rely on a non-compete, plan to provide severance on a no-cause separation or expect the covenant to fall away.

• Protect Trade Secrets Instead

  Where a non-compete is void or risky, Virginia employers protect confidential information through a confidentiality or non-disclosure agreement and the Virginia Uniform Trade Secrets Act (Code of Virginia Section 59.1-336 et seq.). A reasonable clause barring a former employee from soliciting the employer's customers is treated differently from a non-compete. The 2024 Federal Trade Commission non-compete rule was set aside before it took effect and is not binding; Virginia's own law governs here.