Do I Have to Sign a Non-Compete?

I have spent the last week trying to explain to numerous clients (each knee deep in litigation with their ex-employers), how we go about fighting untruthful statements that have been made in separate lawsuits.

What kind of untruthful statements? Here is a sample list of business torts in Virginia:

  • That my client misused and or stole trade secret and/or confidential information from their ex-employer (Virginia Trade Secret Act);
  • That my client, by exploring job prospects, violated her fiduciary duty to her ex-employer (Breach of fiduciary duty of loyalty);
  • That non-competition agreements were breached (Breach of contract);
  • That false statements were made to intentionally damage the reputation of the ex-employer (Defamation / Tortious Interference with Contract);
  • That my client failed to return property that was her employer’s (Conversion / Trade Secret Act).

The list goes on. It is so hard for me to say to a client “I know these allegations are false. I know they are asking for $500,000 which you don’t have. I also know we have the truth on our side but must spend months in litigation gathering evidence to present to the Court, to prove these allegations are with out merit.”

Is it fair? No. Is it ethical? I don’t think so. Is it legal to allege facts you are not sure you can prove? Sadly, I think it is. I have learned that employment litigation is rarely based on equity, justice, or fairness. It is almost always based on bitterness, jealously, and sadly, sometimes companies simply “want to make an example.”

That is why Dan and I often advise clients, NOT to sign non-compete agreements. Of course we give that advice with hesitation, knowing that a refusal to sign an employment agreement in Virginia may mean you don’t get the job.

We are seeing employment/ non-compete agreements in almost every industry: medicine; animal care; plumbing; technology; recruiting; interior design; car care; sales.

The only industry we do not see non-compete agreements, is law. Wonder why? Lawyers know what a pain they are and frankly, how stifling these agreements are to professional growth.

So now, back to the original question: In Virginia, do you have to sign a non compete? Unfortunately, it means you may not get the job. You can always negotiate the non-compete, or when you leave, attempt to negotiate a buy-out.

If you are faced with one, we would be honored to help explain the legal import of the agreement before you sign. If you are hoping to change jobs and have an agreement in place, it would be wise to seek counsel before you make ANY plans to leave.

My personal bias is that non-competes can destroy lives and dreams… and for what? A few extra dollars? I don’t think the American dream can be achieved if we are all forbidden from doing our best because of an employment contract. That being said, we would be delighted to help you with your Virginia non-compete.

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