Question we are often asked: Is your non-compete reasonable and enforceable under Virginia law? Answer we most often give: Yes, if it is narrowly tailored to protect the legitimate business interest of the company… What does that really mean? This week, a Fairfax Virginia Judge http://valawyersweekly.com/2014/03/17/over-broad-geographic-limits-sink-noncompete/ held that it was not likely reasonable for a business…[Read More]
Seriously, I hear this all the time when clients call for non-compete advice:
“I signed the non-compete because they aren’t really binding or enforceable, right?” [No, they are actually very much binding in Virginia and enforceable unless a judge says otherwise.] “Yeah, but there is a technicality. You see, it says my start date was October 4, 2013 and I really started the 3rd, so its void, right?” [No. There is no law that says misstatements make your contract void.] “Oh, but I forgot to mention my job title changed since I signed it.” [So what?] “And the company moved from Virginia Beach to Chesapeake, so now they can’t sue me for competing in Norfolk, right?”
It depends on the circumstances, which are different in every case.
Searching for a “technicality” doesn’t mean what you think it does (thinking of Mandy Patinkin in Princess Bride saying, “You keep using that word. I do not think it means what you think it means.”)
Here is the bottom line: If you sign a contract, every single term in it is binding on you until a judge says otherwise. But some contracts are less likely to be enforced than others.
You’re here because you have a Virginia non-compete agreement.
So why not check out our book, How to Beat Your Virginia Non-Compete? We answer common questions about Virginia non-compete law, including recommendations for employees and business owners.
Could we have called the book, “Non-Compete for Dummies”? No way. You’re no dummy (lots of people have signed non-competes without even realizing it). And non-compete contracts are tricky.
We lay out the basics:
– What are my rights as a Virginia at-will employee?
– How can I request a copy of my employment contract?
– How can I leave my job, take my clients, and not get sued?
Here’s how you can order a free copy of our guide to Virginia non-compete agreements. [Read More]
I love “to do” lists. They make seemingly difficult and impossible tasks more manageable.
Here is my “to do” list for Virginia employees who (a) have an employment contract or non-compete and (b) want to explore or accept a job with another company in their industry. BEFORE YOU APPLY FOR that other job (sorry I had to use CAPS so you would appreciate the nuance of the timing here):
1. Get a copy of your employment contract.
2. Read the contract.
3. Hire an attorney to read the contract.
4. Learn what you can and cannot do under the contract.
Wait a minute, that is a pretty short list, isn’t it? You took the time to ask Google your question about non-competes and some lawyer blog gives you the advice to call a lawyer? Yes, and here is why.
This week, I sent an email that read something like this:
If you do you what propose to do, i.e., start a company on the side and bid for the same contract your current employer is bidding on, while still an employee of the company, you will be in big fat trouble. The kind of trouble that costs hundreds of thousands of dollars trouble. You will get fired. You will get dragged to court. You will lose, and no, capitalism doesn’t protect you, nor does the fact that Virginia is a right to work state. Please reconsider.
Total side bar – if you think “right to work” somehow protects you from your non-compete, please, Google it. See Michigan. Right to work has nothing to do with your non-compete. Nothing. I swear!
What could this employee have possibly contemplated that prompted such a strong message?
By starting a competing business while they were still employed at the company, they risked violating the a legal duty that employees owe their employers under Virginia law: the duty of loyalty.
I was watching a movie yesterday, so enthralling I cannot recall the name, but the last scene reflects a supervisor confronting an employee about lying.
When the employee denies the false tale, he is told to leave immediately. He cannot take computer files. He cannot take anything from the office. He must turn in his key, and leave – now.
The employee, perplexed, claims the supervisor can’t do this. The employee thinks his boss can’t:
(a) fire him without notice
(b) make him leave without his belongings
(c) deny him access to his computer.
It reminded me of the many calls we get from Virginia employees who are shocked and surprised by their employer’s actions.
Imagine a divorce. The bad kind where people would rather fight than be reasonable. The kind where the only people who win are the attorneys because the financial cost of litigation, coupled with the emotional drain of battle wear the parties out. Now, multiply in some additional hurt feelings, a few company owners that say…[Read More]
If someone called me today and asked me a question about my mortgage, I could pull out the paperwork and review the terms. If someone called me today and asked me about my cell phone contract, I would be hard pressed to find any such document. I didn’t keep it. It didn’t seem to matter…[Read More]
I have written on this topic a few times before… Here is a post from May 2010 about the issue: HOW TO GET A COPY OF YOUR NON-COMPETE (reprise) In that post I provide some general information on how to get a copy, but I have a new plan or theory. It is about to…[Read More]