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Virginia Non-Compete --- enforceable?

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Hi from Virginia. A friend (in his 20s) signed a non-compete in January 2016, and left the company in Feb. 2018. The clause entitled "Non-Compete Covenant" reads,

"During employment and for a period of 18 months after the separation of employment for any reason, (Employee) will not directly or indirectly engage in any business that competes with (Company). This covenant shall apply to the geographical area that includes anywhere in the United States. Directly or indirectly engaging in any competitive business includes, but is not limited to: (i) engaging in a business as owner, partner, or agent, (ii) becoming an employee of any third party that is engaged in such business, (iii) becoming interested directly or indirectly in any such business, or (iv) soliciting any customer of (Company) for the benefit of a third party that is engaged in such business. (Employee) agrees that this non-compete agreement will not adversely affect (Employee's) livelihood."

I can post the whole thing if needed--it's about 2 pages long. The other sections are titled Non-Solicitation Covenant, Condition of Employment, Confidentiality, Entire Agreement, Severability, Injunction, Applicable Law, and Conflict Resolution (which just reads, "In the event of a dispute between the parties, the parties hereby also agree that the prevailing party shall be entitled to reasonable attorney fees and costs incurred as a result of the dispute.") The document says in small letters that it came from RocketLawyer.com.

The business is internet-based marketing: Search Engine Optimization email marketing, web design, blogging, social media management and ads, graphic design, videography.

Obviously he would not contact any of their clients, but to limit him from doing any type of marketing work, nationwide, seems pretty extreme. However, obviously he signed the agreement. So a few questions are, How enforceable is this document in preventing him from working for a firm that touches on areas of this kind of marketing? Does it make a difference if it's based in another state (far away)? Can he freelance in these fields? Can he start his own agency in another state? Does he have to hire an attorney in order to move ahead with any or all of these?

Thanks for your thoughts and suggestions.
 


LdiJ

Senior Member
Hi from Virginia. A friend (in his 20s) signed a non-compete in January 2016, and left the company in Feb. 2018. The clause entitled "Non-Compete Covenant" reads,

"During employment and for a period of 18 months after the separation of employment for any reason, (Employee) will not directly or indirectly engage in any business that competes with (Company). This covenant shall apply to the geographical area that includes anywhere in the United States. Directly or indirectly engaging in any competitive business includes, but is not limited to: (i) engaging in a business as owner, partner, or agent, (ii) becoming an employee of any third party that is engaged in such business, (iii) becoming interested directly or indirectly in any such business, or (iv) soliciting any customer of (Company) for the benefit of a third party that is engaged in such business. (Employee) agrees that this non-compete agreement will not adversely affect (Employee's) livelihood."

I can post the whole thing if needed--it's about 2 pages long. The other sections are titled Non-Solicitation Covenant, Condition of Employment, Confidentiality, Entire Agreement, Severability, Injunction, Applicable Law, and Conflict Resolution (which just reads, "In the event of a dispute between the parties, the parties hereby also agree that the prevailing party shall be entitled to reasonable attorney fees and costs incurred as a result of the dispute.") The document says in small letters that it came from RocketLawyer.com.

The business is internet-based marketing: Search Engine Optimization email marketing, web design, blogging, social media management and ads, graphic design, videography.

Obviously he would not contact any of their clients, but to limit him from doing any type of marketing work, nationwide, seems pretty extreme. However, obviously he signed the agreement. So a few questions are, How enforceable is this document in preventing him from working for a firm that touches on areas of this kind of marketing? Does it make a difference if it's based in another state (far away)? Can he freelance in these fields? Can he start his own agency in another state? Does he have to hire an attorney in order to move ahead with any or all of these?

Thanks for your thoughts and suggestions.
He should probably have an attorney review the whole thing and give him advice. However, it does seem overly broad to me and therefore might not hold up.
 

HRZ

Senior Member
VIrgina favors narrow restrictions that employer shows are necessary and the broader ones fail as against public policy ....but get a VA legal pro to opine .

Note the attorney fee provision...if it's a contract unlikely to be upheld the firm is unlikely to take it to trial ...but they might blow a lot of hot air.
 

PayrollHRGuy

Senior Member
He needs to consult a lawyer but Virginia courts have many times struct down ones that were MUCH less restrictive than that one.
 

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