Injunctions against Ex-employees: Not an Easy Task

Injunctions against Ex-employees: Not an Easy Task

Injunctions against Ex-employees: Not an Easy Task 150 150 Dan Frith

We represent employees in non-compete and non-solicitation disputes and often hear from the ex-employer (or more likely their lawyer) that they are going to run to the court and convince a Judge to issue an injunction stopping my client from opening his/her new business or going to work for a competitor. I usually respond with a polite comment that the employer (or lawyer) should do whatever they think necessary to protect their interests.  However, in reality, it is an extremely long shot to get a Virginia court to issue an injunction and a recent decision from Chesterfield County confirms my opinion.

In SanAir Technologies Laboratory, Inc. v. David M. Burrington, 2015 Va. Cir. LEXIS 192, SanAir sued Burrington and other ex-employees for alleged violations of the Virginia Uniform Trade Secret Act, tortious interference with contract, and breach of the non-compete portions of the contract.  SanAir asked the court to issue an injunction preventing the defendants from continuing their conduct and breaches until the merits of the case could be resolved through litigation.  In Virginia, the granting of an injunction is an “extraordinary remedy” and rests on sound judicial discretion to be exercised upon consideration of the nature and circumstances of a particular case.

Noting that the Virginia Supreme Court has yet to specifically rule on the issue, the Judge applied a four-factor test to the facts of the case which included consideration of:

  1. The likelihood the employer would ultimately succeed on the merits of its claim.
  2. The likelihood the employer would suffer irreparable harm if the injunction was not granted.
  3. The balancing of equities of the parties – which is a fancy way of asking is one side a “dirt ball?”
  4. Is granting the injunction in the public’s best interest? (On this issue it is important to note that contracts which restrain trade are not favored, will be strictly construed; and, in the event of an ambiguity, will be construed in favor of the employee.  Additionally, the employer bears the burden of proving that the contract is not overly oppressive in curtailing an employee’s ability to earn a livelihood, and is reasonable in light of sound public policy.

No surprisingly, the Judge found in favor of the employee and denied the employer’s request for a temporary injunction.


About the author

Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at

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