Once upon a time, courts would routinely dismiss non-compete lawsuits brought by businesses against their former employees if the agreements at issue appeared to impose an unreasonable burden on the employee’s ability to earn a living. The rules of the game changed a bit back in 2013 when the Virginia Supreme Court decided Assurance Data v. Malyevac, where it held that in most cases, even if the agreement appears overly broad on its face, the employer should be given an opportunity to prove that for its particular business model, it has a legitimate business interest in restricting a particular employee’s ability to compete with it for the length of time and in the geographic area specified in the agreement. Proving reasonableness is often easier said than done.
For a noncompete to be enforceable in Virginia, it has to be worded so that its restrictions (a) are no greater than necessary to protect the employer’s legitimate business interests, (b) are not unduly harsh or oppressive in limiting the employee’s ability to earn a living, and (c) are reasonable considering sound public policy. It’s up to the employer to produce evidence sufficient to demonstrate each of these elements. As reasoned by the Assurance Data court, “restraints on competition are neither enforceable nor unenforceable in a factual vacuum.” A recent decision out of Fairfax County Circuit Court demonstrates how this can play out in the real world.