THE JANITOR TEST
We see very broad non-compete agreements that prohibit:
“working directly or indirectly for, any competitor (listed in Appendix A) for a period of 2 years, after termination of employment with XYZ Widget Company.”
Does this contract prevent you from using your current skill set, and knowledge base, for a competitor? YES. But it also prevents you from sweeping floors at the competitor’s business, and many Virginia Courts have found this to be overly broad and an unreasonable restriction on your right to employment.
Let’s call it the Janitor test. If the agreement limits you from ALL employment with another competitor, it could likely be held to be overly broad and thus unenforceable… but, if it prohibits you or limits you rather, to using your skills used at XYZ, then the court is more likely to find it is reasonable…