Legal Question in Employment Law in Virginia

Re: Unable To Seek Employment in Any Capacity Due To Non-Compete

Under Virginia law the covenant not to compete

must be reasonable under a three prong test:

Reasonable in the sense that it is no greater

than necessary to protect the employer's

interests;

Reasonable in the sense that it

is not unduly onerous in limiting

the employee's ability to earn a

living;

Reasonable from the perspective of

sound public policy (See Richardson

v. Paxton Co. 203 Va. 790, 127 S.E. 2d

113 (1962).

To further complicate matters, the three essential components of the noncompete agreement: geographical area, duration, and functional limitation(that is, the kind of business and the type of job within that business which the employee is excluded from) must then be evaluated under each of three pronged tests of reasonableness referenced above.

The Virginia Supreme Court has repeatedly ruled that noncompete covenants are to be judged on a case by case basis. (See Modern Environments, Inc. v. Stinnett, 263 Va. 491, 561 S.E. 2d 694(2002)and stated that a "reasonable" covenant

will be upheld. It, unfortunately, however, remains a virtual truism that it is almost impossible to draw up a noncompete agreement with any degree of confidence that it will pass muster with these various tests of "reasonableness" described above.

From your brief description of your particular noncompete, I would surmise that on its face it would not appear to be any exception to the above caveat, and many more facts would be needed and

further analysis undertaken to even attempt a "reasonable" estimate as to the legal sturdiness of your particular noncompete agreement under current Virginia law.