The enforceability of a non-compete clause in Virginia turns on two questions: how much the worker earns, and how narrowly the clause is written. If your average weekly earnings fall below $1,507.01 in 2026, a non-compete cannot be enforced against you at all. If you earn above that line, the clause still has to pass a strict three-part test, and Virginia courts will throw out the entire restriction — not just the bad parts — if any piece of it reaches too far.
The Low-Wage Ban Covers More Workers Than People Expect
Virginia Code section 40.1-28.7:8 prohibits employers from entering into, enforcing, or even threatening to enforce a non-compete against a low-wage employee.1Virginia Code Commission. Virginia Code 40.1-28.7:8 – Covenants Not to Compete Prohibited The ban took effect on July 1, 2020, and it applies to any agreement signed on or after that date. The word “threaten” matters. An employer who warns a low-wage worker about a non-compete to discourage them from leaving has already violated the statute.
For 2026, a worker counts as low-wage if their average weekly earnings fall below $1,507.01, which works out to roughly $78,364 per year.2Virginia Department of Labor and Industry. Notice of the Average Weekly Wage for 2026 The figure is recalculated annually under Virginia Code section 65.2-500.3Virginia Code Commission. Virginia Code 65.2-500 – Compensation for Total Incapacity
The statute reaches further than the dollar threshold alone. Regardless of pay, any employee entitled to overtime under the federal Fair Labor Standards Act also qualifies as a low-wage employee for non-compete purposes.1Virginia Code Commission. Virginia Code 40.1-28.7:8 – Covenants Not to Compete Prohibited Interns, students, apprentices, and trainees are protected whether they are paid or not. Independent contractors are covered if they earn less than the Virginia median hourly wage reported by the Bureau of Labor Statistics, currently $25.49 per hour.4Virginia Works. Virginia Occupational Employment and Wage Statistics 2024
One group is carved out. Workers whose compensation comes predominantly from sales commissions, incentives, or bonuses are not treated as low-wage, even if their total falls below the weekly threshold.1Virginia Code Commission. Virginia Code 40.1-28.7:8 – Covenants Not to Compete Prohibited
What You Can Recover If a Prohibited Non-Compete Is Enforced Against You
An employer that violates the ban faces a $10,000 civil penalty per violation, assessed by the Commissioner of Labor and Industry.1Virginia Code Commission. Virginia Code 40.1-28.7:8 – Covenants Not to Compete Prohibited You also have a private right of action. If a former employer tries to enforce a prohibited non-compete against you, you can sue and recover liquidated damages, lost compensation, and reasonable attorney fees and costs. The court can void the agreement outright and order the employer to stop.
The Three-Prong Test for Everyone Above the Threshold
If you earn above the low-wage line, your non-compete is evaluated against three requirements. It must protect a legitimate business interest, such as trade secrets, proprietary methods, or established customer relationships. It cannot be unreasonably harsh on your ability to earn a living. And it cannot harm the public interest. All three prongs have to be met. Failing one voids the clause.
Judges have wide discretion in applying this test, and context drives the result. A company that spent years building a specialized client list has a stronger legitimate-interest claim than one trying to stop a salesperson from using general skills picked up on the job. Courts have consistently held that an employer cannot use a non-compete just to block ordinary competition.
Virginia Will Not Rewrite an Overbroad Clause
This is where Virginia law differs sharply from many other states. Some states let judges “blue pencil” an overbroad non-compete, trimming it to something reasonable and enforcing the trimmed version. Virginia courts refuse. If any part of the restriction is too broad, the entire clause is void. No rewriting, no partial enforcement.
The practical effect is large. A non-compete that bars “any business activity,” rather than carefully defining the prohibited work, fails in full. Workers benefit from the fact that overreach kills the whole restraint rather than just its worst parts.
Reasonable Duration and Geography
A non-compete has to be limited in time and in territory. On duration, Virginia courts look at how long the confidential information or relationships the worker had access to actually retain their value. One to two years is the range courts most commonly accept. Anything beyond two years faces serious skepticism and is frequently struck down.
Geographic scope has to match the territory where the worker actually did business. If you managed accounts only in Northern Virginia, a statewide ban would almost certainly be found unreasonable. Nationwide or global restrictions survive only in rare situations, such as a senior executive whose trade secrets genuinely have no geographic boundary. Absent that kind of showing, an overbroad territory is treated as an unlawful restraint on trade, and because Virginia will not blue-pencil, the whole clause falls.
The Janitor Test
Virginia courts apply what practitioners call the janitor test. If a non-compete would prevent a former vice president from working as a janitor at a competitor, it is too broad. The prohibited activities have to relate to the work the person actually performed, not every possible role at a competing business.
This catches a common drafting mistake. Clauses that bar a former employee from working for a competitor “in any capacity” fail because they draw no line between competitive and non-competitive roles. A court will ask whether the restricted job functions genuinely threaten the employer’s protectable interests. If the ban reaches further than needed, the entire agreement is void.
What an Employer Can Get If a Valid Clause Is Breached
When a non-exempt worker violates an enforceable non-compete, the employer’s most powerful tool is an injunction. To get one, the employer generally has to show irreparable harm that money cannot fix, a likelihood of winning the underlying case, and a balance of hardships favoring the halt. A preliminary injunction can stop the new employment while the lawsuit plays out, and a permanent injunction can bar the activity for whatever time remains on the restriction.
Employers also pursue monetary damages, usually framed as lost profits traceable to the breach. A company may also seek recovery for the cost of training a replacement or rebuilding client relationships. If the agreement contains a fee-shifting provision, the employer can recover attorney fees and litigation costs on top of damages.
Tolling Clauses
Some non-competes include a tolling provision that pauses the restriction while the worker is in breach. The effect is that an employee who violated a two-year non-compete for six months might owe an additional six months of compliance after a court steps in. Courts are more willing to enforce tolling when the agreement spells it out explicitly and there is evidence of bad faith or concealment. A straightforward departure to a competitor, without deception, is less likely to trigger tolling.
Liquidated Damages
Some agreements set a fixed-dollar penalty for breach instead of requiring the employer to prove actual losses. Virginia courts enforce these clauses only if the stated amount is a reasonable estimate of the harm the employer would suffer. An amount that is excessive relative to any realistic measure of loss is treated as an unenforceable penalty.
Mid-Employment Agreements and Terminations
If you sign a non-compete at the start of a new job in Virginia, the offer of employment itself generally counts as adequate consideration. The analysis changes when an employer asks an existing employee to sign one mid-employment. Courts look for something additional in that situation: a raise, a promotion, a bonus, or access to new confidential information. Without extra consideration beyond simply keeping the job, the agreement may not be binding.
Workers who are fired without cause sometimes assume their non-compete dies with the job. Virginia courts have not adopted that position across the board. The circumstances of departure are one factor in the reasonableness analysis, but involuntary termination alone does not automatically void the restriction. A court weighing whether a non-compete is “unduly harsh” will likely view the balance differently when the employer chose to end the relationship.
The Federal Non-Compete Ban Did Not Take Effect
The Federal Trade Commission announced a rule in April 2024 that would have banned most non-competes nationwide. It never took effect. A federal district court found the FTC lacked authority to issue it, and in September 2025 the Commission voted 3-1 to drop its appeals and accept the vacatur.5Federal Trade Commission. Federal Trade Commission Files to Accede to Vacatur of Non-Compete Clause Rule Virginia’s three-prong test and the low-wage statute remain the governing law for workers in the Commonwealth.