Why the Law – and Reality – Don’t Often Cross Paths

So the Supreme Court of Virginia issued a pretty big decision this week on how lower courts should approach and  evaluate restrictive covenants in Virginia. The case is called Assurance Data Inc. v. Malyevac, and the Court said,”[A] demurrer cannot be used to decide on the merits whether a restraint on competition is enforceable.”

Translation: The big boss decided the other judges need to look at the details and evidence in a case before ruling a contract is unreasonable or unenforceable as a matter of law.

Here’s what it means for employees: It just got more expensive to fight your non-compete in a Virginia court. It is no longer enough to file a motion to dismiss without submitting evidence.

The Court’s decision will change how I approach these cases in the future, but I don’t think it is necessary or helpful to focus on the Court’s ruling right now. Why? Because the ruling affects how judges review evidence in non-compete cases. It in no way affects how you, the Virginia employee, should conduct yourself when you leave one business for another.

And this blawg (get it – law blog?) isn’t really written for lawyers. It is written for employees, like you.

And yes, while it is my job to know the nuances of the law, and to act accordingly, it is also my job to advise you fellow citizens, on how you should act in case you don’t want to spend the next two years getting calls and letters from me because we are knee deep in the nuances of the law.

I have written and presented numerous times on how employee actions lead to litigation. In case you want to see how your recent behavior stacks up, take a minute to watch a recent seminar that I taught on the subject.

Or check out a great post by recovering attorney Jay Shepherd on the same topic. Shepherd writes a clear, concise and accurate article on ways employees can guarantee they will get sued by their old employers.

Shepherd and I agree that certain behavior leads to litigation. Not certain state laws, or certain contract provisions, but certain human actions. Yup, you are the key to whether or not your employer comes after you. How you behave is the determining factor. Your actions do really speak louder than words  in your contract).

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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.