Virginia Non-Compete Agreement
Virginia bans non-competes for low-wage employees and health care professionals; higher earners are bound only if reasonable. Attorney review available.
Introduction
A non-compete agreement commits an employee not to compete with a business for a set time and area after the job ends, and Virginia flatly bars one for any low-wage employee or health care professional under Code of Virginia Section 40.1-28.7:8. In Virginia a non-compete is enforceable only for higher earners, and only within limits. Under Code of Virginia Section 40.1-28.7:8, no employer may enter into, enforce, or threaten to enforce a covenant not to compete with a low-wage employee or a health care professional. A low-wage employee is one whose average weekly earnings are less than the average weekly wage of the Commonwealth, and, as of July 1, 2025, anyone entitled to overtime under the federal Fair Labor Standards Act counts as low-wage no matter what they earn. For 2026 the Commonwealth's average weekly wage is roughly $1,500 per week, about $78,000 a year, so confirm the current figure with the Virginia Employment Commission because it changes each year. For an employee outside those protected groups, a non-compete is enforceable only if it is reasonable: courts in Virginia generally require the employer to show the restraint is no greater than necessary to protect a legitimate business interest, does not unduly harm the employee's ability to earn a living, and is reasonable under public policy. Virginia does not blue-pencil, so a court generally strikes an overbroad covenant entirely rather than narrowing it. A separate rule makes any non-compete unenforceable if the employer fires the employee without cause and without severance. This page explains Virginia's rule and offers a template scoped to what Virginia actually permits. It is a state-law overview, not a promise that any given clause will hold up.
Key Things to Know
- 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
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
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
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
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
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.
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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.).
Key decisions before you file
Before you file a Non-Compete Agreement in Virginia, a few decisions shape the document: which option to choose and what each one means. The Non-Compete Agreement guide walks through them.
Open the Non-Compete Agreement guideCustomize your Non-Compete Agreement Template with DocDraft
Virginia Requirements for Non-Compete Agreement
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.
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.
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.
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 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.
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.
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.
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.
Frequently Asked Questions
Sometimes. Code of Virginia Section 40.1-28.7:8 makes it unlawful to enter into or enforce a covenant not to compete with a low-wage employee or a health care professional, so those are void. For an employee outside those groups, a non-compete is enforceable only if it is reasonable, meaning the employer can show 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 public policy. An ordinary low-wage employee non-compete is void in Virginia.
Virginia sets no fixed statutory maximum. Courts in Virginia generally enforce a non-compete only for a period reasonably necessary to protect a legitimate business interest, so a shorter, tightly scoped restriction of several months to a year is far more likely to hold up than a long, broad one. Because Virginia does not blue-pencil, an overbroad duration can void the entire covenant rather than being trimmed to a reasonable length, which makes conservative drafting important in Virginia.
Virginia ties the ban to the Commonwealth's average weekly wage. Under Section 40.1-28.7:8, a non-compete is void for a low-wage employee, defined as a worker whose average weekly earnings are less than the average weekly wage of the Commonwealth (Section 65.2-500(B)). For 2026 that benchmark is roughly $1,500 per week, about $78,000 a year, and it changes annually, so confirm the current figure with the Virginia Employment Commission. Separately, anyone entitled to federal overtime counts as low-wage in Virginia regardless of earnings.
Yes. Under Section 40.1-28.7:8, a non-compete is void for any low-wage employee and, as of 2026, for any health care professional licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work, regardless of pay. As of July 1, 2025 the low-wage category also covers any employee entitled to overtime under the federal Fair Labor Standards Act. If you employ these workers in Virginia, treat a non-compete as unenforceable and rely on confidentiality protections instead.
No. 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 rather than save part of it. That is why a narrowly drafted restriction, tied to a real business interest and a reasonable time and area, is essential in Virginia.
Virginia does not require advance notice or a 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. A 2026 rule (Section 40.1-28.7:8(C)) adds that a non-compete is unenforceable if the employer discharges the employee without cause and without providing severance or other monetary payment, so read any non-compete carefully before you sign it.
They use a confidentiality or non-disclosure agreement and the Virginia Uniform Trade Secrets Act (Code of Virginia Section 59.1-336 et seq.), which lets a business protect and sue over misuse of trade secrets. A reasonable clause barring a former employee from soliciting the employer's customers is also treated differently from a non-compete under Section 40.1-28.7:8 and is not caught by the low-wage ban. This approach protects confidential data without restraining where a former employee can work in Virginia.
No. In 2024 the Federal Trade Commission issued a rule that would have banned most non-competes nationwide, but a federal court set it aside before it took effect, so it is not currently in force and its status has remained unsettled. Either way, Virginia's own statute, Code of Virginia Section 40.1-28.7:8, and Virginia common law govern non-competes here: void for low-wage employees and health care professionals, and enforceable for higher earners only if reasonable.