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Virginia Non-Disclosure Agreement Requirements

Effective July 1, 2026, Virginia barred employers from enforcing a non-compete against any employee, regardless of wage level, who is discharged without cause and without severance or other monetary payment disclosed when the covenant was signed.

Introduction

Effective July 1, 2026, Virginia barred employers from enforcing a non-compete against any employee, regardless of wage level, who is discharged without cause and without severance or other monetary payment disclosed when the covenant was signed. Virginia Code Section 40.1-28.7:8 separately bans covenants not to compete for low-wage employees, defined for 2026 as anyone earning less than $1,507.01 a week, and for any employee entitled to overtime pay under the Fair Labor Standards Act regardless of what they earn. A Non-Disclosure Agreement in Virginia is a contract in which one or both parties agree to keep specified information confidential, and it is not itself a non-compete, but a confidentiality clause drafted broadly enough to stop a low-wage or overtime-eligible worker from doing their job afterward risks the same problem this statute targets. Trade secrets shared under a Virginia NDA are protected separately under the Virginia Uniform Trade Secrets Act (Code of Virginia Section 59.1-336 through Section 59.1-343), and a misappropriation claim generally must be filed within three years of when the misappropriation was discovered or reasonably should have been discovered. Virginia has no statute limiting what an employee invention-assignment clause can reach, unlike California, Delaware, and several other states. The practical effect for drafting is the same as elsewhere: keep the confidentiality definition tied to genuine trade secrets and sensitive information rather than a person's ability to work in their field afterward.

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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.

Key decisions before you file

Before you file a Non-Disclosure Agreement in Virginia, a few decisions shape the document: which option to choose and what each one means. The Non-Disclosure Agreement guide walks through them.

Open the Non-Disclosure Agreement guide

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VIRGINIA NON-DISCLOSURE AGREEMENT

[Party A Name] of [City], Virginia, and [Party B Name] of [City], Virginia (each a "Party") enter into this Non-Disclosure Agreement as set out below.

  1. Purpose. The Parties anticipate exchanging Confidential Information in connection with [describe business purpose, e.g. a potential business relationship, transaction, or engagement], and this Agreement sets the terms of that exchange.

  2. Definition of Confidential Information. "Confidential Information" means non-public business, technical, or financial information a disclosing Party shares with a receiving Party, whether marked confidential or reasonably understood as such given the circumstances, including any trade secret meeting the Virginia Uniform Trade Secrets Act's two-part test (Code of Virginia Section 59.1-336): independent economic value from not being generally known or readily ascertainable, plus efforts reasonable under the circumstances to keep it secret. Information already public through no fault of the receiving Party, already in its possession before disclosure, developed independently, or later received without restriction from a third party is not Confidential Information.

  3. Obligations. The receiving Party will use Confidential Information solely to accomplish the Section 1 purpose, protect it with at least reasonable care, and disclose it only to employees, contractors, or advisors who need it for that purpose and are bound to confidentiality no less strict than these terms; the receiving Party answers for their breach.

  4. Scope Limitation (Virginia-Specific). Code of Virginia Section 40.1-28.7:8 bars an employer from enforcing a covenant not to compete against a "low-wage employee," defined for 2026 as anyone averaging under $1,507.01 a week, or against any employee entitled to Fair Labor Standards Act overtime pay (29 U.S.C. Section 207) regardless of earnings; effective July 1, 2026, SB 170 further bars enforcing a non-compete against any employee, at any wage, discharged without cause and without disclosed severance. Because that statute reaches a confidentiality clause drafted broadly enough to function as a disguised restraint on future employment, this Agreement's obligations are limited to genuine trade secrets and legitimately confidential business information; they do not reach a Party's general skills, knowledge, training, or experience, nor a low-wage or overtime-eligible employee's ability to accept other work.

  5. Federal Whistleblower Notice. Federal law grants a narrow immunity here: under 18 U.S.C. Section 1833(b) of the Defend Trade Secrets Act, nobody faces criminal or civil liability for disclosing a trade secret in confidence to a government official or attorney solely to report a suspected legal violation, or in a sealed court filing. This section states that notice directly because giving it preserves the disclosing Party's exemplary-damages and fee-shifting remedies under the Act.

  6. Term. Confidentiality duties run for [X years] from signing. That fixed term does not bind information that also independently qualifies as a trade secret under Virginia law; a trade secret keeps its protected status for as long as it meets the Act's two-part test, whether that outlasts the fixed term or not.

  7. Return or Destruction. Within [X days] of the disclosing Party's written request, or once the Section 1 purpose concludes, the receiving Party will return all Confidential Information in tangible form, destroy what it cannot practically return, and certify completion if asked.

  8. Remedies. Because a breach may cause harm no later payment can fully repair, the disclosing Party may seek an injunction under Code of Virginia Section 59.1-337, damages under Section 59.1-338, and, if a court finds the misappropriation willful and malicious or the claim made in bad faith, attorneys' fees under Section 59.1-338.1, on top of ordinary contract remedies.

  9. Governing Law. Virginia follows lex loci contractus, the common-law rule that the law of the place where a contract is made governs its validity and interpretation (Woodson v. Celina Mutual Insurance Co., 211 Va. 423 (1970)); since the Parties enter into this Agreement in Virginia, Virginia law governs.

  10. Miscellaneous. An electronic signature satisfies this Agreement's signature requirement under the Virginia Uniform Electronic Transactions Act (Code of Virginia Section 59.1-479 et seq.) and the federal ESIGN Act (15 U.S.C. Section 7001). If a court holds any provision unenforceable, the rest of this Agreement stays in force. Each Party's promise to protect the other's Confidential Information is itself sufficient consideration.

[Party A Signature] ____________________ Date: __________ [Party B Signature] ____________________ Date: __________

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.

Frequently Asked Questions

A Non-Disclosure Agreement in Virginia is an ordinary contract in which one or both parties agree to keep specified information confidential. It can be mutual, where both sides share confidential information, or one-way, where only one side does. Trade secrets shared under the agreement are also separately protected by the Virginia Uniform Trade Secrets Act (Code of Virginia Section 59.1-336 through Section 59.1-343) regardless of what the NDA itself says.

It depends on the worker's wage and overtime status. Virginia Code Section 40.1-28.7:8 bans covenants not to compete, including a confidentiality clause broad enough to function as one, for low-wage employees (earning less than $1,507.01 a week in 2026) and for any employee entitled to Fair Labor Standards Act overtime pay regardless of what they earn. An NDA covering a higher-earning, non-overtime-eligible worker is not automatically barred, but an overly broad confidentiality definition still carries litigation risk.

For 2026, a low-wage employee under Virginia Code Section 40.1-28.7:8 is anyone earning an average of less than $1,507.01 a week, about $78,364.52 a year, a figure the Virginia Department of Workforce Development and Advancement recalculates annually. Virginia also bans enforcing a covenant not to compete against anyone entitled to FLSA overtime pay, regardless of earnings. The ban applies to covenants not to compete, not to NDAs generally, but a confidentiality clause in a Virginia NDA broad enough to stop a covered worker from doing their job afterward risks being treated the same way.

A trade secret misappropriation claim under the Virginia Uniform Trade Secrets Act generally must be brought within three years after the misappropriation is discovered, or after it reasonably should have been discovered with reasonable diligence (Code of Virginia Section 59.1-340). A separate breach-of-contract claim over the NDA itself follows Virginia's ordinary written-contract limitations period.

Virginia has no statute addressing this the way California's Labor Code Section 2870, or similar laws in Delaware, Illinois, Kansas, Minnesota, North Carolina, Utah, and Washington, do. Whether an invention-assignment clause in a Virginia NDA or employment agreement reaches an invention made on an employee's own time depends on the clause's own wording and ordinary contract and common-law principles, not a specific statutory carve-out.

It depends on whether confidential information will flow in both directions or only one. A mutual NDA fits a two-way exchange, such as a merger, partnership, or joint-venture discussion where both sides disclose sensitive information. A one-way NDA fits a one-directional exchange, such as pitching a business plan to an investor who is not sharing anything confidential back. Both forms are equally enforceable in Virginia; the choice is about which structure matches the actual relationship.

No. A Virginia NDA is an ordinary contract, not a formal instrument like a will or power of attorney, so it does not require notarization or witnesses to be valid. It only needs the standard elements of a valid contract: an offer, acceptance, and consideration, along with signatures from the parties being bound.

The non-breaching party can seek injunctive relief to stop an ongoing or threatened disclosure, along with damages caused by the breach. If the disclosed information also qualifies as a trade secret, the Virginia Uniform Trade Secrets Act provides an additional, independent basis for relief, including damages for actual loss and unjust enrichment, separate from whatever remedies the NDA itself specifies.