Virginia has one of the nation’s strongest worker protections against non-compete agreements. Under Va. Code Ann. § 40.1-28.7:8 (effective July 1, 2020), non-compete agreements are VOID for “low-wage employees” defined as workers whose average weekly earnings are less than 125% of the average weekly wage in Virginia (approximately $65,000 annually for 2024, adjusted annually). This protection applies to any agreement signed on or after July 1, 2020, and cannot be waived. Additionally, the statute provides that if an employee prevails in challenging a non-compete, the employer must pay the employee’s attorney fees—a powerful deterrent against enforcement.
If you’re a Virginia worker with a non-compete, understanding the income threshold and the automatic protection for lower-wage employees is crucial. This guide explains Virginia’s unique low-wage worker exemption, how it applies, and what to do if your employer tries to enforce a non-compete.
Key Facts
| Aspect | Details |
|---|---|
| Enforceability | Yes, if employee earns ≥125% of Virginia average weekly wage (~$65,000/year) |
| Max Duration | 2 years (typical; common law reasonableness applies) |
| Income Threshold | ~$65,000/year — VOID for “low-wage employees” below this (indexed annually) |
| Blue-Pencil Reform | Common law applies (courts may modify); varies by jurisdiction |
| Garden Leave Required | Not required by statute |
What Makes a Non-Compete Enforceable in Virginia
Non-compete agreements in Virginia are enforceable only if the employee earns at least 125% of the average weekly wage in Virginia. The current threshold (2024) is approximately $65,000 annually, but this figure is indexed and updated by the Virginia Department of Labor and Industry annually. Check the VDOL website for the current year’s threshold.
Agreements signed before July 1, 2020, may be enforceable regardless of income; the low-wage protection applies only to agreements signed on or after that date. For employees above the income threshold, common law reasonableness applies: the agreement must protect a legitimate business interest, be reasonable in duration and geographic scope, and not impose an undue hardship.
Critical protections in Va. Code § 40.1-28.7:8: (1) Low-wage employee void—any non-compete for an employee earning less than 125% of the Virginia average weekly wage is VOID and unenforceable. (2) Cannot apply to independent contractors below threshold—the protection extends to independent contractors below the income threshold as well. (3) Attorney fees—if an employee prevails in challenging or defending against a non-compete, the employer must pay the employee’s attorney fees and costs. (4) Settlement agreement protection—non-competes cannot be included in settlement agreements with low-wage employees.
Income Thresholds and Worker Exemptions
Virginia’s income threshold is the most employee-protective feature of its non-compete law. For 2024, the threshold is approximately $65,000 annually (125% of the Virginia average weekly wage). If you earn less than this, any non-compete signed on or after July 1, 2020, is automatically void. You cannot be bound by one, and your employer cannot enforce it.
For employees above the threshold, common law reasonableness applies. The restriction must protect a legitimate business interest and be reasonable in duration and geographic scope.
What Happens If You Violate One
If you are a low-wage employee earning below the threshold, your non-compete is void. Your former employer cannot enforce it, seek damages, or obtain an injunction. You are free to work.
If you earn above the threshold and violate an enforceable non-compete, your former employer can seek injunctive relief, damages for breach of contract, and attorney fees. However, a critical protection: if you defend against enforcement and prevail, the court will order your former employer to pay YOUR attorney fees. This shifts the financial risk to the employer and discourages meritless enforcement.
Real Situations in Virginia
Arlington Technology Employee (Software/Technology): Marcus, a software developer earning $55,000 annually, signed a two-year non-compete when hired by an Arlington tech company in 2021. The agreement prohibited him from working for competing software companies in Virginia for two years. When he left to join a competitor, his former employer sent a cease-and-desist letter threatening legal action. Marcus consulted an attorney, who immediately identified that his salary was below Virginia’s income threshold (approximately $65,000 in 2024). The non-compete was automatically void under Va. Code § 40.1-28.7:8. His former employer backed down, and Marcus was free to work.
Richmond Financial Services Manager (Finance/Services): Jennifer earned $85,000 annually as a manager at a Richmond-based financial services firm. She signed a two-year, statewide non-compete when hired (signed after July 1, 2020). When she left to work for a competing firm in Richmond, her former employer sued for breach. Jennifer was above the income threshold, so the non-compete was facially valid under Virginia law. However, she challenged the statewide scope as unreasonable for a business operating only in the Richmond area. The court agreed, reformed the non-compete to cover a 50-mile radius around Richmond, and enforced the reformed version.
Virginia Beach Healthcare Provider (Healthcare/Medical): Dr. Patricia, a physician earning $180,000 annually, signed a two-year non-compete when hired at a Virginia Beach medical group in 2021. The agreement was reasonable in all respects. When she left to open a competing practice, the group sued for breach. The court found Dr. Patricia above the income threshold and the non-compete reasonable in scope, duration, and geographic area. The court enforced it, and Dr. Patricia faced liability for breach.
Common Mistakes Virginia Employees Make
Not checking the income threshold against current VDOL figures. Virginia’s threshold is indexed annually and changes each year. Do not assume you know the current threshold. Check the Virginia Department of Labor and Industry website for the current year’s figure (approximately $65,000 in 2024, but verify). If you’re close to the threshold, the difference could matter.
Failing to request attorney fees if you successfully challenge a non-compete. If your former employer sues to enforce a non-compete and you prevail in your defense, you are entitled to recover your attorney fees under Va. Code § 40.1-28.7:8. Make sure your attorney includes this demand. Many employers will settle rather than pay your legal costs.
Not realizing that agreements signed before July 1, 2020, may still be enforceable. Virginia’s low-wage protection applies only to agreements signed on or after July 1, 2020. If you signed a non-compete before that date, even as a low-wage employee, common law reasonableness may apply. Check the date of your agreement carefully.
What to Do If You Have a Non-Compete
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Check the date your agreement was signed. If signed before July 1, 2020, different rules may apply. If signed on or after July 1, 2020, proceed to step 2.
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Determine your current average weekly earnings. Calculate your average weekly earnings (total compensation including salary, bonuses, and benefits divided by 52 weeks). Compare this to 125% of Virginia’s current average weekly wage (check VDOL for the current threshold; approximately $65,000 annually in 2024).
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If you’re below the threshold, you’re protected. Your non-compete is void and unenforceable. You do not need to comply with it. If your former employer attempts to enforce it, consult an attorney immediately. You may be entitled to recover attorney fees for defending against illegal enforcement.
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If you’re above the threshold, request a written release from your former employer. Contact your former employer (in writing, via email) asking them to release you from the non-compete or confirm in writing that they won’t enforce it for a specific new job. A written release eliminates uncertainty.
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If sued or receiving enforcement threats, immediately consult a Virginia employment attorney. If your former employer sends a cease-and-desist letter or files a lawsuit, contact a Virginia attorney right away. If you’re below the threshold, the case can be quickly dismissed. If you’re above the threshold, you can raise defenses. If you prevail, you’ll recover attorney fees. Contact the Virginia Department of Labor and Industry (https://www.doli.virginia.gov) for resources and referrals.
Related Guides
- Complete Employment Rights Guide
- Virginia Wage Theft Laws: What Workers Need to Know
- Small Claims Court Guide: Suing Your Employer
Disclaimer
This article provides general information about Virginia non-compete laws and is not legal advice. Non-compete agreements are void for “low-wage employees” earning less than 125% of the Virginia average weekly wage (approximately $65,000 annually in 2024, indexed annually) under Va. Code Ann. § 40.1-28.7:8, effective for agreements signed July 1, 2020 or later. If you prevail in challenging or defending against a non-compete, the employer must pay your attorney fees. Agreements signed before July 1, 2020, may be subject to common law analysis. If you are subject to a non-compete agreement or facing enforcement, consult a licensed Virginia employment attorney for advice specific to your situation. Laws change; verify current income thresholds with the Virginia Department of Labor and Industry.