Virginia Non-Disclosure Agreement Requirements

Introduction

Key Things to Know

1. 1

   Trade secret protection runs through the Virginia Uniform Trade Secrets Act (Code of Virginia Section 59.1-336 through Section 59.1-343), separate from whatever the NDA itself says.

2. 2

   Virginia Code Section 40.1-28.7:8 bans covenants not to compete for low-wage employees, defined for 2026 as those earning less than $1,507.01 a week ($78,364.52 a year), and separately bans them for anyone entitled to overtime pay under the Fair Labor Standards Act, regardless of what they earn.

3. 3

   That risk runs through how broadly the NDA's confidentiality definition reaches, not the existence of the NDA itself. A confidentiality clause that protects genuine trade secrets and sensitive information, without functioning as a disguised restriction on a low-wage or overtime-eligible worker's ability to do their job afterward, is not the kind of covenant Section 40.1-28.7:8 targets.

4. 4

   Effective July 1, 2026, Virginia bars enforcement of a non-compete against any employee, regardless of wage level, who is discharged without cause and without severance or other monetary payment disclosed at the time the covenant was signed (Code of Virginia Section 40.1-28.7:8, subsection C, added by SB 170).

5. 5

   A trade secret misappropriation claim in Virginia generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered, and a continuing misappropriation counts as a single claim rather than a series of separate ones (Code of Virginia Section 59.1-340).

6. 6

   Virginia has no statute limiting what an employee invention-assignment clause in an NDA or employment agreement can reach. Unlike California, Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, ownership of an invention a Virginia employee makes on their own time is governed by ordinary contract and common-law principles, not a specific carve-out statute.

7. 7

   Mutual NDAs, where both sides share confidential information, and one-way NDAs, where only one side does, are both ordinary enforceable contracts in Virginia; which one fits depends on whether the exchange runs both directions, like a partnership or acquisition discussion, or one direction, like pitching an investor.

8. 8

   A Virginia court can order injunctive relief to stop an ongoing or threatened breach of a valid NDA, in addition to any damages the disclosure caused.

Virginia Requirements for Non-Disclosure Agreement

• Definition of Confidential Information (Virginia Uniform Trade Secrets Act, Va. Code Section 59.1-336)

  Clearly defines what constitutes confidential information under Virginia law, including trade secrets as defined in the Virginia Uniform Trade Secrets Act's two-part test: independent economic value from not being generally known or readily ascertainable, and efforts reasonable under the circumstances to keep it secret.

• Exclusions from Confidential Information (Virginia Uniform Trade Secrets Act, Va. Code Section 59.1-336)

  Section 59.1-336 does not itself enumerate a contractual exclusions list; it defines a trade secret as information not generally known and not readily ascertainable by proper means, which is the statutory basis for excluding information that is already public, already known to the receiving party, independently developed, or later received without restriction from a third party. Those exclusions are a standard NDA drafting convention consistent with, not separately itemized by, the statute's definition.

• Remedies for Breach (Virginia Uniform Trade Secrets Act, Va. Code Section 59.1-337, Section 59.1-338, and Section 59.1-338.1)

  Specifies available remedies under Virginia law: injunctive relief under Section 59.1-337, damages under Section 59.1-338, and, where a court finds the misappropriation willful and malicious or the claim asserted in bad faith, attorneys' fees under Section 59.1-338.1.

• Time Limitations (Virginia Common Law of Contracts)

  Addresses the duration of confidentiality obligations, which must be reasonable in scope under Virginia contract law to be enforceable.

• Return of Materials

  Requires the return or destruction of confidential materials upon termination of the agreement, as an ordinary contractual term under Virginia common law. No Virginia statute imposes a general document-retention requirement on private parties to an NDA; the obligation runs from the agreement itself, not from a separate statutory retention rule.

• No License Granted (Virginia Common Law of Intellectual Property)

  Clarifies that no intellectual property rights are transferred by virtue of disclosing confidential information, consistent with Virginia contract and intellectual property principles.

• Jurisdiction and Venue (Virginia Code Section 8.01-265, forum non conveniens)

  Section 8.01-265 governs a Virginia court's authority to transfer venue or decline jurisdiction under forum non conveniens principles; it is the backdrop against which an NDA's own private jurisdiction and venue clause operates, rather than a statute that itself establishes Virginia as the governing jurisdiction for a private contract.

• Defend Trade Secrets Act Compliance (Defend Trade Secrets Act of 2016, 18 U.S.C. Section 1833(b))

  Includes required notice of immunity under the federal Defend Trade Secrets Act for individuals who disclose trade secrets in confidence to government officials or attorneys solely for the purpose of reporting suspected violations of law, or in a sealed court filing, as required to preserve the disclosing party's exemplary-damages and fee-shifting remedies under the Act.

• Electronic Signatures (Virginia Uniform Electronic Transactions Act, Va. Code Section 59.1-479 et seq.; Federal Electronic Signatures in Global and National Commerce Act (E-SIGN), 15 U.S.C. Section 7001 et seq.)

  Acknowledges the validity of electronic signatures in accordance with both Virginia and federal electronic signature laws.

• Non-Solicitation Provisions (Virginia Common Law on Restrictive Covenants)

  Includes reasonable non-solicitation provisions that comply with Virginia's restrictions on restraints of trade, which must be narrowly tailored to protect legitimate business interests.

• Severability (Virginia Common Law of Contracts)

  Ensures that if any provision is found unenforceable under Virginia law, the remainder of the agreement remains valid and enforceable.

• Integration Clause (Virginia Common Law of Contracts)

  States that the NDA constitutes the entire agreement between the parties, in accordance with Virginia's parol evidence rule.

• Amendment Procedures (Virginia Common Law of Contracts)

  Specifies that modifications to the agreement must be in writing and signed by all parties, consistent with Virginia contract modification requirements.

• Waiver Provisions (Virginia Common Law of Contracts)

  Clarifies that failure to enforce any provision does not constitute a waiver of rights, in accordance with Virginia's waiver doctrine.

• Assignment Restrictions (Virginia Common Law of Contracts)

  Addresses whether the agreement can be assigned to third parties, consistent with Virginia's laws on assignment of contracts.

• Compliance with Virginia Data Protection Laws (Virginia Consumer Data Protection Act, Va. Code Section 59.1-575 et seq.)

  Ensures compliance with the Virginia Consumer Data Protection Act for NDAs involving personal data of Virginia residents.

• Compliance with Federal Privacy Laws (Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. Section 1320d et seq.; Gramm-Leach-Bliley Act, 15 U.S.C. Section 6801 et seq.)

  Addresses compliance with applicable federal privacy laws when the confidential information includes personal data, health information, or financial information.

• Force Majeure (Virginia Common Law of Contracts)

  Addresses circumstances beyond the parties' control that may affect performance, consistent with Virginia's force majeure doctrine.

• Attorneys' Fees Provision (Virginia Common Law of Contracts)

  Specifies whether the prevailing party in litigation is entitled to recover attorneys' fees, which Virginia courts will generally enforce if explicitly stated in the contract.