The Virginia Supreme Court issued an opinion on Friday making clear that non-compete provisions that are overbroad as to the function to be performed by the employee are not enforceable in Virginia.
In Home Paramount Pest Control Cos. v. Shaffer, the court revisited a non-compete provision that the Court had previously upheld in a 1989 opinion, and this time found that the provision was invalid for overbreadth of prohibited employee functions. The court noted that Virginia law has developed and been clarified by a series of cases since that original opinion was issued 22 years ago.
The provision at issue in the Home Paramount case stated that the employee could not “engage indirectly or concern himself . . . in any manner whatsoever” in pest control during the term of the provision. The court held that the fact that the non-compete provision at issue was very narrow in its geographic scope and its duration could not cure the fact that the provision was overbroad because it would bar the former employee even from non-competitive activities. Importantly, the court also held that the former employer was not entitled to conduct discovery into the qualifications or training of the former employee, nor was it entitled to show that the former employee had actually competed with his former employer in the same type of job he had held for them, because the non-compete provision was on its face unenforceable.
This case is an important reminder that non-compete provisions must be very carefully drafted in Virginia, or else they will provide no protection to an employer.