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.
In our legal practice, many current and former employees in Virginia often ask us whether they have the right to obtain a copy of their personnel file or at least have the ability to request and review it. Each state has their own laws and regulations with respect to this issue for private sector employees. Furthermore, government employee (federal, state, county, municipal) requests are governed by different federal, state, county, or city laws and regulations.
Access to Employment Files Vary by State Law
Private sector employees (those employed by companies; the majority of employees) are generally not entitled to a copy of their personnel file in most jurisdictions. Virginia has not yet passed a law requiring private sector employers to provide copies of an employee’s personnel file upon request or in requiring employee access to review and inspect their files. Other states, such as California and Massachusetts, however, have passed laws giving private sector employees required access to their personnel files. The general national trend seems to be moving towards passing laws and regulations that require employers to provide current and former employees access to their personnel files.
Public, Union and Federal Employees Have Additional Rights to their Personnel Files
Private sector employees belonging to unions may have additional rights to review or obtain a copy of their personnel files, depending on collective bargaining agreements negotiated between their union and an employer. Federal employees generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5. In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through discovery procedures.
General Tips for Virginia Employees and Employers
If employees do not have a statutory or other right to obtain a copy of their personnel file, it is still possible for the employee to ask human resources for a copy of an employee’s file. Even though employers may not have a formal policy on personnel files, human resources will often grant an employee’s request to review his or her personnel file unless they have a reason not to do so.
We also advise Virginia employers to consider allowing employees, under certain conditions, with the ability to review their personnel file even if it is not required. This often has a positive effect on workplace morale and clearly helps to limit suspicion in the company workplace. Such a policy also provides the employer the ability to clearly document that an employee was put on notice where disciplinary or performance actions have been taken. In addition, an employer should certainly have a policy in place that is consistently applied to all employees.
Conclusion
Our firm represents Virginia employees regarding employment matters and requests for information from personnel files. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page can be found at Berry & Berry Facebook Page.
