Noncompete agreements generally prohibit former employees from joining a competing organization for some specified length of time after the employment relationship ends. Some agreements restrict competitive activity even before the relationship ends. In the absence of such an agreement, many employees might assume that they are free to start competing with their employers at any time they wish. This isn’t necessarily true. Under Virginia law, employees owe a fiduciary duty of loyalty to their employer which prohibits competitive acts during employment. This duty exists irrespective of any contractual agreement. Employees may generally make certain arrangements during their employment to compete in the future (i.e., after they resign) but are prohibited from taking action that would cause competitive harm to the employer.
There are no precise rules regarding exactly what steps an employee can take to prepare for termination without actually engaging in direct competition. Each case is decided on its own facts. “This right, based on a policy of free competition, must be balanced with the importance of the integrity and fairness attaching to the relationship between employer and employee….Under certain circumstances, the exercise of the right may constitute a breach of fiduciary duty….Whether specific conduct taken prior to resignation breaches a fiduciary duty requires a case by case analysis.” (See Feddeman & Co. v. Langan Assoc., 260 Va. 35, 42 (2000)).