Why you have no real “right to work” in Virginia

Yet again, a smart professional person hired me, and asked the following question:

I know I signed an employment contract that says I can’t serve my clients for three years after termination, but the law says I have a right to work doesn’t it? So how can my employer enforce that agreement – it’s against the law, right?

And once again, I have had to say something like the following:

No. Sadly, you have no such right to work. This is Virginia. “Virginia is Open For Business” is code for, your company has the right to make you an indentured servant and you have very limited rights that are controlled primarily by this awful contract you signed.

Hopefully, I wasn’t that negative and fatalistic in my response, but I am confident it felt like that to the client. I told them that the phrase right to work was a terribly labeled law relating only to Unions and whether you can be forced to join one, and did not in any way mean their non-solicitation or non-compete agreement was invalid by law.

Though I have said it before (now too often for anyone to care) – the law is created by politicians, and politicians typically have a group they are trying to prove. If your state is traditionally conservative like mine, the laws are written to protect business owners, not the employees of the businesses. And in Virginia, we actually have no law written on non-compete agreements. Nothing to protect employees from egregious contracts that would prevent them from starting a business, or providing for their family.

We have 200+ years of judicial decisions (what we call the common law) that says non-compete agreements are enforceable if narrowly tailored to protect a legitimate business interest. And that’s about all we have to go by.

In sum, no Code that limits non – competes, and we have a “case by case” basis approach which means the validity of a contract is really up to the judge hearing your specific case.

That didn’t seem like a helpful summary, did it. Let me start over.

In sum, it sucks if you are an employee. And doesn’t if you are a business owner. You have no right to work and if you agree in writing not to work, you likely have to honor that agreement.

Not the news I wanted to give today. Certainly not the news most of my clients want to hear but alas, it is the truth. You have no real right to work in Virginia, which means we as Virginians have a few choices:

  • Change the laws (and every year there is a Bill before the GA that would get rid of non-competes to some extent and every year that Bill gets squashed by the Chamber of Commerce and other pro-business lobbyists)
  • Change the lawmakers
  • Don’t ever work for a company that has you sign a non-compete
  • Start your own company and never ask employees to sign non-competes
  • complain about the law online hoping someone might care

You have no right to work in Virginia. Please know this before you sign some terrible agreement assuming it isn’t binding.

Why this photo? Because it’s of a female cubscout (my kid) and I at a recent cubscout meeting. The point? Things do change. They take time, but they do change. So here’s to hoping the laws will change one day as well.

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.