Virginia Non-Compete Law: Protected Workers, Remedies, and Deadlines

Virginia non-compete law makes these agreements enforceable only in narrow circumstances. Since 2020, the Commonwealth has banned non-competes outright for “low-wage employees,” a category that in 2026 covers any worker earning less than $1,507.01 per week (roughly $78,365 per year), plus every hourly employee entitled to federal overtime regardless of total pay.¹ For workers above that line, a non-compete is enforceable only if it survives a demanding three-part judicial test, and Virginia courts void agreements they consider even slightly overbroad.

Who Is Protected From Non-Competes Outright

Virginia Code § 40.1-28.7:8 forbids employers from entering into, enforcing, or threatening to enforce a non-compete against a low-wage employee. The label is misleading. The statute sweeps in a much larger group than the name suggests.

You qualify as a low-wage employee in 2026 if your average weekly earnings over the 52 weeks before your termination were less than $1,507.01. If you worked fewer than 52 weeks, your total earnings are divided by the number of weeks you were actually paid.² The threshold adjusts every year because it tracks the statewide average weekly wage.³

The wage threshold is not the only route into the protected group. You also qualify, no matter how much you earn, if you are entitled to overtime under the federal Fair Labor Standards Act. Most hourly workers are therefore covered even when their pay clears $78,365 a year.² Interns, students, apprentices, and trainees are protected as well, paid or unpaid. Independent contractors are covered if their rate falls below the statewide median hourly wage reported by the Bureau of Labor Statistics, which stands at $25.49 based on the most recent data.⁴

One exclusion matters. Workers whose earnings come primarily from sales commissions, incentives, or bonuses are carved out of the low-wage definition entirely, even when their pay falls below the weekly threshold.² Commission-based salespeople stay subject to the common-law test no matter what they take home.

What the Ban Forbids and What It Allows

For a covered worker, the ban reaches the full range of employer conduct: asking you to sign a new non-compete, invoking an existing one in a demand letter, or filing suit to enforce it. Even an informal threat of legal action counts as a violation.

The statute also carves back the definition of “covenant not to compete” in a way that helps departing employees generally. A non-compete cannot stop you from serving a former employer’s customer if you did not initiate the contact.² If a client seeks you out at your new job, your old employer’s restriction does not reach that relationship.

The ban targets non-competes only. Two other restrictive covenants remain in play. Non-disclosure agreements protecting trade secrets and confidential information are explicitly preserved by the statute.² Non-solicitation clauses, which bar you from actively reaching out to former clients or recruiting former coworkers, can also still be enforced if they meet the same reasonableness scrutiny courts apply to any restrictive covenant.

How Courts Test Non-Competes for Higher Earners

If you fall outside the protected category, your non-compete is not automatically enforceable. The employer has to prove three things, and failing any one voids the whole restriction.

The restriction protects a legitimate business interest such as trade secrets, confidential information, or established customer relationships. A general wish to avoid competition is not enough.
The restriction does not impose undue hardship on the employee. Courts examine duration, geographic reach, and the range of prohibited job functions. A clause blocking all work for any competitor in any role almost always fails.
The restriction does not harm public policy. Virginia favors open competition and labor mobility.

Duration is where most fights happen. One-year restrictions have generally fared better in Virginia courts than longer ones, though a two-year ban limited to a handful of named clients can survive where a two-year regional ban will not. The closer an agreement looks to a blanket prohibition, the more likely a court voids it.

Virginia Courts Will Not Rewrite an Overbroad Agreement

Some states let judges trim the excessive parts of a non-compete and enforce the rest. Virginia does not. If any piece of the restriction reaches too far, the court strikes the entire clause rather than narrow it. That all-or-nothing rule means an agreement overreaching on geography, duration, or scope can leave the employer with no protection at all.

Non-Competes Signed After You Started Work

A non-compete signed at hiring is supported by the job itself. When an employer hands one to an existing employee, the question of consideration is genuinely unsettled in Virginia. The state Supreme Court has found that continued at-will employment was enough in one case; a circuit court reached the opposite conclusion in another. If you signed a non-compete after your start date without receiving anything new in exchange, its enforceability is an open issue that turns on the specific facts.

Remedies If an Employer Violates the Ban

A covered worker can sue in any court with jurisdiction. The available remedies include voiding the agreement, liquidated damages set at the court’s discretion, recovery of lost wages and other compensation tied to the restriction, and reasonable attorney fees, costs, and expert witness fees. The fee-shifting piece matters most in practice, because it removes the cost barrier that keeps many workers from challenging an illegal restriction.

Separately, the Commissioner of Labor and Industry can impose civil penalties of up to $10,000 per violation, paid to the state.²

How Long You Have to Sue

The statute gives you two years, measured from the latest of four dates: when you signed the non-compete, when you first learned it existed, when your employment ended, or when your employer took any step to enforce it.² The “latest of” structure matters. If you signed three years ago but a cease-and-desist letter arrived last month, the clock restarted with that letter. Employers cannot sit on an illegal agreement and wait out the deadline.

What About the Federal FTC Rule

The Federal Trade Commission issued a rule in April 2024 that would have banned most non-competes nationwide, with a narrow exception for senior executives earning above $151,164 in policy-making positions. It never took effect. A federal district court found the FTC lacked authority to issue it, and in September 2025 the FTC dropped its appeals and agreed to the rule’s vacatur.⁵ No federal ban is currently in force. For Virginia workers and employers, the state statute and common-law framework described above are the controlling law.

1
Virginia Department of Labor and Industry. Notice of the Average Weekly Wage for 2026
2
Virginia Code Commission. Virginia Code 40.1-28.7:8 – Covenants Not to Compete Prohibited; Exceptions; Civil Penalty
3
Virginia Code Commission. Virginia Code 65.2-500 – Compensation for Total Incapacity
4
Virginia Works. Virginia Occupational Employment and Wage Statistics 2024
5
Federal Trade Commission. Federal Trade Commission Files to Accede to Vacatur of Non-Compete Clause Rule