We get calls from very bright, educated, capable men and women who have done their homework on whether their non-compete or non-solicitation clause will be considered valid by the Court. Often, these folks will say “It’s not enforceable. They asked me to sign it 2 years after I started my job!” Well, in California, that might get you somewhere, but in Virginia, the courts agree, it does not make the contract invalid.
A non-compete or non-solicitation agreement is simply, a contract. And for a contract to be valid, there has to be consideration, rather, a bargain or exchange. Each side gets a little, each side gives a little. Virginia law believes that if you get to keep your job, then that is bargain enough for contracting away competition rights and signing a non-compete. In other states, the employer cannot just ask you to sign one without giving you more in the bargain, such as a bonus, or a raise – so it is often you will see an agreement where employee signs the non-compete, but gets cash bonus in exchange.
We will continue to argue that lack of consideration makes the contract invalid, but so far, no Virginia judges agree…. So note, each state is different – check the contract, and do some research on the specific state laws that apply.