In Virginia, non-compete agreements are legal but only narrowly enforceable, and they are completely banned for "low-wage employees." Under Virginia Code § 40.1-28.7:7, which took effect July 1, 2020, an employer cannot enter into, enforce, or threaten to enforce a non-compete against any worker classified as low-wage. As of 2024, that protected group was expanded: it now includes not only workers earning below the Commonwealth's average weekly wage, but also any employee who is entitled to overtime pay under the federal Fair Labor Standards Act (FLSA) for hours worked over 40 in a week. For everyone else, a non-compete is enforceable only if the employer proves it is reasonable in duration, geographic scope, and the activities it restricts. Because Virginia courts will not rewrite an overbroad agreement, many non-competes fail entirely.
Virginia's Ban on Non-Competes for Low-Wage Workers
The centerpiece of Virginia law is the statutory prohibition on non-competes for low-wage employees. The statute defines a "low-wage employee" as a worker whose average weekly earnings are less than the average weekly wage of the Commonwealth, a figure calculated each year by the Virginia Employment Commission (VEC). This threshold rises every year. As of 2026 it sits in the range of roughly $1,400 to $1,500 per week (approximately $73,000 to $78,000 per year), but you should confirm the current published figure directly with the Virginia Employment Commission before relying on it, because the number is recalculated annually.
A 2024 amendment broadened the definition significantly. Effective July 1, 2024, a "low-wage employee" also includes any employee who is entitled to overtime compensation under the FLSA for hours worked beyond 40 in a workweek, regardless of how much that worker earns. In practice this means that most non-exempt (hourly and overtime-eligible) workers in Virginia cannot be bound by a non-compete even if their pay exceeds the average weekly wage threshold.
The protection covers a wide range of working relationships. Low-wage employees include interns, students, apprentices, and trainees employed with or without pay. Importantly, the ban does not protect workers whose earnings are derived in whole or predominantly from sales commissions, incentives, or bonuses; those individuals are treated differently and may still be subject to a non-compete.
What the Ban Actually Prohibits
The statute bars an employer from entering into, enforcing, or threatening to enforce a covenant not to compete against a low-wage employee. A non-compete under the law is any agreement that restrains, prohibits, or otherwise restricts a person from working for another employer or from being self-employed in a similar business after leaving. The law expressly does not prohibit reasonable agreements that protect trade secrets or confidential and proprietary information, and it does not bar non-disclosure agreements. So a low-wage worker can still be asked to sign a confidentiality agreement; they simply cannot be barred from going to work for a competitor.
The Reasonableness Test for Everyone Else
If you are not a low-wage employee, your non-compete may be enforceable, but only if it survives Virginia's strict reasonableness analysis. Virginia courts treat non-competes as restraints of trade and construe them narrowly against the employer, who bears the burden of proving the agreement is reasonable. Drawing on Virginia Supreme Court decisions such as Omniplex World Services Corp. v. US Investigations Services, courts ask three questions:
- Is it no broader than necessary to protect the employer's legitimate business interest?
- Is it not unduly harsh or oppressive in curtailing the employee's ability to earn a living?
- Is it reasonable in light of sound public policy?
In applying this test, courts examine three dimensions together: the duration of the restriction, its geographic reach, and the scope of the activities or functions it prohibits. A restriction that prevents you from working in any capacity for a competitor, even in a role unrelated to your old job, is frequently struck down as overbroad. Likewise, a nationwide ban for a worker who served only a local market, or a multi-year term with no clear business justification, invites a court to refuse enforcement.
No "Blue Penciling" in Virginia
One of the most important features of Virginia law is that courts will not reform or "blue pencil" an overbroad non-compete to make it enforceable. Unlike some states where a judge can narrow an unreasonable term, Virginia generally takes an all-or-nothing approach: if any part of the restrictive covenant is unreasonable, the entire covenant can be declared void and unenforceable. This is a significant advantage for employees and a reason employers draft Virginia non-competes conservatively.