Non-compete agreements are enforceable in Virginia only in narrow circumstances, and many signed here will not hold up. State law flatly bans them for workers earning below the Commonwealth’s average weekly wage (roughly $78,365 a year in 2026), and for everyone else, the employer must prove the restriction is reasonable in time, geography, and scope. If any part of the agreement goes too far, Virginia courts void the whole thing rather than rewriting it.
Who Is Automatically Protected
Virginia Code § 40.1-28.7:8 prohibits employers from entering into, enforcing, or threatening to enforce a non-compete against any “low-wage employee.”1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty The definition reaches further than the name suggests.
You qualify as a low-wage employee if your average weekly earnings over the 52 weeks before leaving the job fall below the Commonwealth’s average weekly wage. For 2026, that threshold is $1,507.01 per week, or roughly $78,365 per year.2Virginia Department of Labor and Industry. Notice of the Average Weekly Wage for 2026 The figure is recalculated annually.3Virginia Code Commission. Virginia Code 65.2-500 – Compensation for Total Incapacity
You also qualify regardless of your earnings if you are entitled to overtime pay under the federal Fair Labor Standards Act. That provision sweeps in most non-exempt hourly and salaried workers below the FLSA salary threshold. Interns, students, apprentices, and trainees are protected whether paid or unpaid. Independent contractors earning an hourly rate below the Commonwealth’s median hourly wage for all occupations are also covered.1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty
One significant exclusion: the statute does not protect workers whose earnings come predominantly from sales commissions, incentives, or bonuses, even if total compensation is below the weekly threshold.1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty Commissioned salespeople often remain bound by agreements that would be void for other employees earning the same amount.
If your employer violates the ban, they face a $10,000 civil penalty per violation from the Commissioner of Labor and Industry. You can also sue for lost wages, liquidated damages, and attorney fees. The limitations period is two years, running from the latest of three dates: when you signed the non-compete, when you learned about it, or when your employment ended.1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty
What the Employer Must Prove for Everyone Else
If you earn above the threshold, your non-compete is not automatically void, but it is not automatically valid either. The employer carries the full burden of proving the agreement is enforceable, and Virginia courts approach these contracts with skepticism because they restrict a person’s ability to earn a living.
To enforce the agreement, your former employer must show three things: the restriction protects a legitimate business interest, the terms are no broader than necessary to protect that interest, and the agreement does not place undue hardship on you or harm the public.
Legitimate business interests fall into recognized categories. Trade secrets and genuinely confidential information are the strongest basis. Established relationships with specific clients you had direct, sustained contact with can qualify. Investment in specialized training sometimes supports a restriction, but only when the employer provided something beyond ordinary on-the-job learning. Wanting to prevent competition for its own sake is not enough.
Where Overbroad Agreements Fail
Virginia has no statutory bright line for duration or geography. Courts evaluate each agreement individually, but patterns have emerged.
On duration, restrictions of one to two years are the most commonly upheld. Three years or longer draws significantly more scrutiny, and a non-compete with no end date is almost certainly unenforceable.
On geography, the restricted area must match where the employer actually does business or where you provided services. A 25- or 50-mile radius tied to your work area is far easier to defend than a statewide or multi-state ban. When an employer restricts a broad area without showing it competes across that territory, the restriction looks like overkill. Courts also consider whether the geography and duration together effectively lock you out of your profession.
Functional scope matters as much as time and territory. A valid restriction bars you only from work substantially similar to what you did for the former employer. Preventing a sales representative from selling competing products to the same customer base is defensible. Preventing that same person from working at a competitor in any capacity, including unrelated roles, is the kind of overreach that voids agreements entirely.
Why One Bad Clause Can Kill the Whole Contract
Virginia follows what is often called a no-blue-pencil rule, and this is where the state’s approach diverges sharply from many others. If a court finds any part of a non-compete overbroad, the entire agreement falls. Virginia courts will not shorten the duration, shrink the geographic area, or strike a single problematic clause to save the rest.
An employer who wrote a three-year restriction when two years might have been defensible does not get a judicial reduction to two years. They get nothing. An employer who defined the restricted territory as the entire East Coast when you only worked in Northern Virginia loses all geographic protection, not just the excess.
For you as the employee, this is the single most powerful tool in any challenge. If your non-compete contains even one unreasonable provision, the whole restriction may fall away. Read every clause carefully, because a single overreach can unravel the entire document.
Non-Competes vs. NDAs and Non-Solicitation Clauses
Not every post-employment restriction is a non-compete, and the distinction affects what you are still bound by even if your non-compete is void.
Nondisclosure agreements are preserved by the statute. Your employer can still require you to sign an NDA covering trade secrets and proprietary information even when a non-compete against you would be illegal.1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty Sharing confidential formulas, customer databases, or proprietary processes can still expose you to a trade secret lawsuit.
Customer non-solicitation clauses sit in a middle ground. The statute says a covenant not to compete does not include a restriction that only prevents you from initiating contact with or soliciting the employer’s customers, as long as you remain free to serve those customers if they come to you on their own.1Virginia Code Commission. Code of Virginia 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty A properly drafted customer non-solicitation can be enforceable even against a low-wage employee.
Employee non-solicitation clauses are treated differently. A Virginia court has held that barring a former worker from recruiting ex-coworkers qualifies as a covenant not to compete, because recruiting away employees is itself a form of competing. These clauses are unenforceable against low-wage workers, just like a standard non-compete.
What Happens If Your Former Employer Sues
Most non-compete disputes come to a head when you take a new job and the former employer asks a court to stop you from working. The usual move is a request for a preliminary injunction while the case is litigated, and the employer must show it is likely to win on the merits, that it will suffer irreparable harm without the injunction, that the balance of hardships favors it, and that an injunction serves the public interest.
The merits question is where many enforcement attempts die. Because the employer carries the burden of proving reasonableness and because the no-blue-pencil rule means the agreement must stand as written, an employer with even a slightly overreaching contract faces a steep climb at the injunction stage. If the preliminary injunction is denied, the practical fight is usually over. You keep working, and the employer’s claimed harm becomes harder to prove over time.
Irreparable harm is a separate obstacle. If the alleged damage is purely financial and can be quantified, a court may decline to enjoin you and let the case proceed toward a damages trial instead.
Business Sales Are a Different Story
If you signed a non-compete as part of selling your business rather than as an employee, do not assume the same analysis applies. Virginia courts give much more latitude to restrictions negotiated between a buyer and seller, on the reasoning that the buyer paid for the company’s goodwill and the seller was compensated for the restriction. Longer durations and broader geography that would fail in an employment context routinely survive in a sale-of-business context.
No Federal Backstop
The Federal Trade Commission’s 2024 attempt to ban most non-competes nationwide never took effect. Federal courts blocked it, and in February 2026, the FTC formally withdrew the rule.4Federal Trade Commission. Revision of the Negative Option Rule, Withdrawal of the CARS Rule, Removal of the Non-Compete Rule To Conform These Rules to Federal Court Decisions Enforceability for Virginia workers remains entirely a question of state law and the specific terms of the agreement you signed.