Remember in 4th grade when your teacher started grading your assignments with a red pencil? She was correcting your work, stating, “This is wrong.” A check mark meant an answer was correct.
What if your teacher had re-written your answers instead – giving you credit but unilaterally changing your answer from X to Y? Would that make sense? Would that be fair? Would the teacher be consistent and re-write everyone’s papers the same or would she have the choice to pick and choose?
Seems like a ridiculous example but I want you to hold it with you when you hear about judges being asked to “blue pencil” portions of employment contracts.
Rather than decide whether the contract is valid or binding as written, the judge may be asked to re-write various portions of the contract and thereby bind the parties to terms they did not initially agree. Does that sound fair? Does that sound right to ask a 3rd party to create new terms in an agreement?
Some states allow judicial blue penciling – rewriting of agreements. Thankfully, Virginia does not. There is not a single case in Virginia allowing the practice.
In fact, last year during oral arguments before the Supreme Court of Virginia –BB&T Insurance Services v. Thomas Rutherfoord Inc., Record No. 101843, one of the justices indicated he believed a blue pencil provision in the contract could be seen as in violation of public policy in the commonwealth such that the entire contract could be held unreasonable as a matter of law.
Sadly, the case settled and we do not have an opinion with such an opinion to throw around at Virginia employers. Rather, we have the lack of case law to support the following contention: Currently, blue penciling is not done in Virginia. Arguably, such a provision may be found to be unreasonable and perhaps, when extended to the contract as hole, make the entire contract void as a violation of Virginia law.
We will wait and see what develops next.
We will watch the courts anxiously.