I love the law – but sometimes it is not as clear as many would like.
We receive many calls with the following questions:
(1) I HAVE A NON-COMPETE, WHAT DO I DO?
(2) IS MY CONTRACT VALID?
I tell prospective clients frequently, that I cannot tell them how to answer question 1. I will not advise you to breach a contract. I will not advise you on job options or choices. I can only share with you Virginia law on non-competes, and you decide where to go from there.
So regarding the second question – why does it matter if the Non-compete is valid? Virginia law is very clear on one point, if a Non-compete is UNREASONABLE restriction on your right to make a living, and/or is not tailored to protect your employer’s legitimate business interest, the contract will be held INVALID and unenforceable.
So whether it is reasonable, is the answer to whether it is valid.
Prospective Clients then ask – Is my contract reasonable? And again, I wish I knew. The Court determines the reasonableness of each contract on a case by case basis (which means no attorney can tell you whether your contract is reasonable, valid or enforceable).
Is 5 years reasonable? In some cases yes, and in some, no.
Is 25 miles reasonable? In some cases yes, and in some, no.
Is a state wide restriction reasonable? In some cases yes, and in some, no.
Virginia does not provide a litmus test, per se. It provides a three part test, which the Court will apply to each and every contract and industry before determining that the contract is reasonable.
So I am sorry we can’t give you job advice – but we sure can share with you our experience and knowledge of Virginia law, and go from there.