Thoughts on Virginia Non-Compete Agreements
Virginia non-compete agreements and clauses are important for employees to consider in joining or leaving an employer. Northern Virginia, given its proximity to Washington, DC, has numerous businesses engaged in government contracting. Given this fact, and the fact that these types of businesses tend to be very competitive, there has been a significant rise in the number of employees that are required to sign non-competition or “non-compete” agreements as part of their employment requirements. Over the past 10 years or so, we have noticed that businesses in Virginia are using “non-compete” agreements in their hiring processes far more than before. The rise in non-compete agreements in Virginia has not been limited to just government contractor positions, but also includes many types of other businesses as well ranging in size from small to large. At the same time, the laws regarding non-compete rules are evolving in Virginia and elsewhere.
What is a Non-Compete Agreement?
A non-compete agreement is merely a written agreement where an employee agrees not to leave an employer and then compete for the same business when they leave that employment. Typically, non-compete clauses are inserted in employment agreements by an employer during the hiring process and have become somewhat commonplace. Common characteristics of non-compete agreements include duration of the non-competition period, limits as to competition for certain customers and the geographic boundaries of the non-competition area. If you work in Virginia and have signed a non-compete agreement with your employer, former employees can face legal issues if they violate them. That is why it is important to get legal help in negotiating these agreements and attempting to resolve issues that later arise from alleged violations by an employer.
Types of Issues That Arise in Virginia Non-Compete Agreements
There are any number of issues that can arise because of a non-compete agreement or clause in Virginia. An employer may accuse a former employee of violating the prior agreement. In such cases, hiring a Virginia employment attorney is critical to resolve the issues before they get into court. Non-compete agreements in the Commonwealth of Virginia tend to be viewed as somewhat disfavored and have been viewed somewhat negatively as a type of restraint on business. As a result, in Virginia, non-compete agreements have a better chance of success, if enforcement is attempted, the more narrowly tailored they are. Courts in Virginia will enforce reasonable non-compete agreements. Non-compete agreements, in this narrow sense, must be prepared to: (1) protect a bona fide employer’s interest; (2) must be reasonable; and (3) must not be against public policy. There are a number of specific features that come into play in Virginia with respect to these 3 variables. Typically, a valid business interest is considered the extent to which a non-compete agreement protects the employer from poaching existing customers, trade secrets, or other confidential information.
Non-Compete Agreements Should be Narrow
Keeping in mind that these types of non-compete agreements must be drafted narrowly, courts in Virginia will not enforce agreements that are overbroad or unreasonable. Some pitfalls in non-compete agreements include the following: (1) agreements that impose overbroad geographical limitations (i.e. a prohibition on competing in the United States where the service area is only a portion of Virginia); (2) unreasonable time constraints (i.e. a 20-year restriction; although each determination is based on the individual facts of a case); (3) agreements prohibiting an employee from working in any capacity for a competitor; (4) agreements whose terms and not clear or discernible; (5) agreements for licensed professionals (physicians, lawyers, etc.) which may be barred on public policy grounds; and (6) agreements that unfairly burden an employee’s ability to obtain alternative employment. The bottom line is that employers should be reasonable in drafting non-compete agreements for employees.
Other potential issues with non-compete agreements exist and it is important for an employer to structure a clear and fair non-compete agreement in order for it to be upheld by the Virginia courts. It is important for an employee to understand their obligations as well. Since July 1, 2020, with a change in law, Virginia has prohibited employers from entering into, enforcing or threatening to enforce non-compete agreements with low wage employees. The definition of low-wage employee changes based on the Commonwealth’s average weekly wage. A good case to review by the Virginia Supreme Court on these issues can be found at this link. Additionally, the federal government may or may not be successful in attempting to further reduce the ability of some employers to use non-compete agreements for employees in the future. As mentioned above, this area of law is in the process of evolving.
Obtain Legal Advice About Non-Compete Agreements
When negotiating a non-compete agreement or clause or when questions arise as a result of a non-compete agreement it is very important to seek an experienced Virginia employment lawyer. This is best accomplished prior to signing an agreement or when potential violations arise. Our law firm represents employees and businesses with respect to non-compete agreements. We can be contacted at www.berrylegal.com for legal advice and consultation in such matters.
An interesting topic in Virginia employment law involves an employee’s right to privacy within the workplace. While there have not yet been many specific laws enacted by the Commonwealth of Virginia governing employee rights in the workplace, this area of law is developing and changing almost as fast as technology is. In light of the advancements in monitoring technology available to employers, it is only a matter of time before we see more employee privacy issues addressed by the Virginia Legislature and our court system.
Thoughts on Employee Use of Employer Computers
In general, for a number of reasons we recommend that employees avoid using employer technology to conduct their own personal business. Virginia employers have been given a fair amount of leeway under existing laws to monitor employees in the workplace which means that employers can attempt access in reviewing their own computers and networks.
Regarding this issue, one of the biggest concerns that we have run across in representing employees in wrongful termination cases in Virginia involves an employee’s use or alleged misuse of an employer’s email, computers, network or Internet. Frequently, one of the first actions taken by an employer following a contentious termination is to conduct an examination of a former employee’s computer or prior Internet usage. The usual result is that the employer often claims that the former employee was conducting personal business or misusing the employer’s network. An employer may then claim that the employee violated Virginia’s Computer Crime Act, VA. Code § 18.2-152.3 or misappropriation or theft of trade secrets.
The best way for an employee to avoid these types of issues from arising either during or after employment is to not use the employer’s computer or network for any personal business. While it can be inconvenient to consult legal counsel over these types os issues with employers, it can also be very costly to get it wrong and pay the costs of legal defense when an employer wants to pursue a former employee in some way.
Email and Internet Monitoring of Employees
Employers that monitor employee email or Internet use should obtain legal advice ahead of time to avoid the risk of running afoul of criminal and other statutes. This cannot be overemphasized. That said, an employer in Virginia typically has the ability to monitor emails and Internet usage on their own networks. Employers should warn employees about monitoring in advance. We usually advise employees that they should expect that their work email account may be monitored and should not be used for personal business even if they have not been so informed of a company’s decision to monitor email.
Employers also need to be careful to avoid accessing employee private, non-work email accounts to which they may have access. For example, an employer should avoid attempting to inappropriately log into a former employee’s private email account that remains accessible from the employee’s former computer. Virginia also has enacted the Virginia Computer Invasion of Privacy Law. If an employer does something egregious in the course of monitoring email or Internet usage, then it could be subject to a potential claim under this law or perhaps a tort (personal injury) claim.
VA Code § 18.2-152.5 provides for privacy protections for all individuals for unauthorized access. Specifically, the privacy provisions of the Virginia Code provide that:
A person is guilty of the crime of computer invasion of privacy when he uses a computer or computer network and intentionally examines without authority any employment, salary, credit or any other financial or identifying information, as defined in clauses (iii) through (xiii) of subsection C of § 18.2-186.3, relating to any other person. “Examination” under this section requires the offender to review the information relating to any other person after the time at which the offender knows or should know that he is without authority to view the information displayed.
Telephone and Voice Mail
Some employers also monitor work-related employee telephone calls. A Virginia employer who wants to monitor telephone calls of an employee or voice mail messages must usually warn the employee in advance and the monitoring must be done in the scope of normal business. This is often accomplished by the employer at the beginning of employment, through policies listed in an employment contract or handbook. There are many pitfalls in monitoring telephone calls and voice mails of employees and this ideally should be done after receiving legal advice given that potential criminal issues could result if done incorrectly under both federal and Virginia wiretapping laws.
Security Camera Monitoring of Employees
With the widespread use and availability of small wireless cameras, a number of employers have attempted to monitor their employees using such technology. The courts have generally upheld an employer’s right to monitor its employees with security cameras so long as the monitoring is not particularly invasive. This has not yet been subject of major litigation in Virginia but it is no doubt forthcoming. In other jurisdictions, some courts have upheld employee privacy rights in situations where camera monitoring of employees has been very invasive such as with cameras in locker rooms or bathrooms. Many courts have permitted the use of such camera monitoring to the extent that employees are aware of it and can see the cameras, and that it is not misused.
Finally, Virginia does not yet recognize the traditional claim of invasion of privacy, which could help in employee rights claims when an employer goes too far. However, serious breaches of employee privacy can result in other types of tort claims for intentional infliction of emotional distress. Virginia case law and national trends continue to change and more employment rights and the ability to sue for egregious privacy violations are likely to develop in the future.
Microchipping Employees as a Form of Monitoring
While definitely a potentially future issue, at least 1 employer recently was in the news for offering employees a microchip to facilitate employer tasks. Three Square Market, a technology company in Wisconsin asked workers to consent to having a microchip, about the size of a grain of rice implanted between their thumb and forefinger. Approximately 50 of the 80 company employees agreed to this procedure. The microchip will allow employees to check into work, access computers, open doors and purchase company food and drink.
This is clearly a major issue coming down the road, but is likely to take a number of years to develop through litigation. For instance, it could easily be the case where states vote to ban such a practice, in advance, or otherwise regulate it. For now, it is just something to keep in mind for the future.
Employee Monitoring Cases Nationally
While Virginia has not been subject to too many employment cases as of yet involving employee monitoring, the issue has reached a number of other states. a U.S. District Court has held that employees have no reasonable expectation of privacy even when employers have promised it. In Smyth v. Pillsbury, 914 F.Supp. 97 (E.D.Pa. 1996), the court ruled that an employer could read personal e-mails even when it had told employees it would not.
The U.S. Supreme Court, in Quon v. City of Ontario, 130 S. Ct. 2619 (2010), held that a police officer, through his department issued device had no expectation of privacy in his text messages, even though his commanding officer had promised him that his messages would not be monitored. In Quon, the Court held that the officer should have ignored what his commanding officer told him and relied upon the boilerplate language in a form he was given with the device.
Conclusion
If you need assistance with Virginia employment law issues or issues involving the use of employee monitoring, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook.
In the Commonwealth of Virginia former employees are entitled to all of their previously earned wages, even if they are terminated from their employment. However, for various reasons sometimes employers attempt to avoid paying an employee their last paycheck. There are many reasons that this occurs. However, the nonpayment of wages owed can cause significant hardship for an employee and can be a costly mistake for an employer. There are laws and regulations that govern the issues related to the nonpayment of wages in the Commonwealth of Virginia at the state and federal levels.
When Last Paychecks are Due
An employer generally should pay a former employee’s final paycheck by the next pay period as it would be regularly due. Some state laws vary on this issue, but failure to make prompt payment can violate a number of wage and overtime laws on a state and federal level. State wage laws can cover non-payment and federal laws, such as the Fair Labor Standards Act (FLSA), can cover non-payment of overtime.
Virginia Wage Law
The Virginia Code § 40.1-29 provides that final payments to a terminated employee should be made on or before the employee would have normally been paid had the employee not been terminated. The Virginia Code imposes civil and criminal penalties for nonpayment of wages by an employer. The Virginia Code further prohibits employers from deducting portions of a final payment without the former employee’s consent with the exception of standard taxes and withholdings.
A number of state vary on the issue of whether an employee is entitled to receive accrued vacation or sick leave upon an employee’s departure. Virginia has taken the approach that fringe benefits such as vacation/annual/holiday leave, sick leave or severance pay are not required to be paid out by a former employer under the law. In addition, Virginia employers may establish any policy or no policy regarding fringe benefits at the termination of an employee.
If an employee in Virginia is confronted with nonpayment of final wages, the employee can contact the Virginia Department of Labor and Industry. The Virginia Department of Labor and Industry may assist an employee in obtaining payment of final wages after the employee files a complaint, but it does not handle claims for wages over the amount of $15,000. Additionally, the failure to pay wages can be pursued in the court system.
Federal Wage Law
The FLSA is a federal law which governs the payment of overtime to employees. When an employer does not make timely payment of a final check which includes overtime, there could be a FLSA violation which could be costly for an employer in terms of damages. If the payment of lost wages involves unpaid overtime, the United States Department of Labor, Wage and Hour Division may be contacted and an investigation may be initiated for FLSA overtime violations by the former employer. Additionally, the failure to pay overtime can also be pursued in court.
Conclusion
We represent employees and employers in regards to non-payment of wage cases. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.
