Clarifying Non-Compete Law in Virginia

In 2020, Virginia passed legislation creating prohibitory rules regarding noncompete agreements. This statute follows several other states which have created similar laws. In Virginia, employers cannot enforce noncompete agreements against low-wage employees. To fully understand and know what next steps to take for you or your business, let’s take a closer look.

This statute prohibits any agreement that “restrains, prohibits, or otherwise restricts an individual’s ability, following the termination of the individual’s employment, to compete with his former employer” (§ 40.1-28.7:8). This means there is potential to affect noncompete provisions in employment agreements, standalone restrictive covenants, and separation agreements. It does not prohibit confidentiality agreements and nondisclosure agreements.

What exactly is “low-wage”?

The term “low-wage employee” is a bit of a misnomer because it includes around half of VA employees. The statute defines low-wage employees as anyone who receives less than the average weekly wage per VA Employment Commission. This number will be updated quarterly and is subject to change but is currently approximately $59,124/year or $1,137/week. Low-wage employees also include “interns, students, apprentices, or trainees employed, with or without pay, at a trade or occupation in order to gain work or educational experience” (§ 40.1-28.7:8).

Another important aspect for employers is penalties for violation. A qualifying employee may sue an employer for violating or attempting to violate this law. The employee may receive “all appropriate relief” (§ 40.1-28.7:8) which may include:

  1. An injunction against the employer
  2. Liquidated damages
  3. Lost compensation
  4. Reasonable attorney’s fees and costs, including fees for expert witnesses

What employers can do:

Luckily, there are some measures that employers can take to avoid violation, provide a fair working environment, and still protect their professional interests. An easy first step is to post a copy or approved summary of the statute with other required employment notices. Employers must also take the time to review form non-compete agreements (and other restrictive covenants) to ensure compliance. Non-compete agreements for employees other than “low-wage employees” are enforceable if the employer can show that they are:

  1. Narrowly drafted to protect legitimate business interest
  2. Not unduly burdensome on the employee’s ability to earn a living
  3. Not against public policy

Due to other provisions of note not explored in this post, be sure to contact Gavin Law Offices for more information.  We continually monitor recent non-compete and trade secret legislation to better serve you and your business.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

Pam Gavin Interviewed by CBS 6

Thanks to SonaBank P.O.W.E.R, on Wedesday April 10, 2019 our very own Pam Gavin was interviewed by CBS 6’s Jessica Noll. Tune in to the video here, to learn more about Gavin Law Offices, Pam’s journey to where she is today and to talk about the importance of having a great team.

https://wtvr.com/2019/04/10/sonabank-p-o-w-e-r-believing-in-the-power-of-you-7/

https://www.facebook.com/CBS6News/videos/274502846795357/

 

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West End law firm sweeps into N.C. with new attorney

Gavin Law Offices, which handles intellectual property matters for clients, earlier this month opened an outpost in Raleigh, North Carolina, after picking up attorney Alan Etkin. It’s the firm’s first office outside of Virginia.

Founder Pam Gavin said the expansion is similar to its January push into Charlottesville when longtime solo attorney Elva Mason Holland joined the fold.

“This is very much a similar story,” Gavin said of Etkin.

Etkin, who earned his law degree from Emory University, handles a variety of business law issues for closely held corporations.

“Alan and I worked together for years. He was in house with a big client,” Gavin said. “The company he was with was sold and he was doing his own thing and I said, ‘Why don’t we tackle this together?’”

Gavin also liked the idea of having an office in Raleigh to tap into that area’s concentration of tech firms and startups, a ripe environment for the firm’s bread-and-butter IP practice.

“It’s a great market for tech and intellectual property,” she said.

The firm, founded about 15 years ago after Gavin’s stints at McGuireWoods and Reed Smith, now has an attorney headcount of seven.

Gavin said she’ll keep her eye out for future growth through similar deals with attorneys.

“I’m always plotting and planning,” she said. “I’m just going to continue to grow.”

Click here for the full article on Richmond BizSense

Gavin Law Offices expands into Charlottesville

A Richmond law firm that boasts clients in the entertainment industry has expanded its practice westward.

Gavin Law Office, which was founded locally in 2002, last month opened an office in Charlottesville.

The expansion was prompted by the addition of Elva Mason Holland, a Charlottesville attorney who had a longtime solo practice before joining Gavin.

Firm founder Pam Gavin said she’s had her eye on Holland for years.

“I’ve been trying to get her to work with me forever,” Gavin said. “She’s been solo. She needs more depth to the bench and I’m always interested in growing.”

Gavin said her firm’s practice and Holland’s book of business fit nicely together. Gavin Law represents musicians and a range of businesses, from startups up to large companies, in intellectual property matters. Holland represents talent in the entertainment business.

The new addition brings Gavin’s attorney headcount to six. Its local office is in Henrico County at 2229 Pump Road.

Holland has her bachelor’s and law degrees from UVA.

Gavin, also a UVA grad, began her career in bank marketing, before going back to law school at William & Mary. She started her own firm in 2004 after stints at McGuireWoods and Reed Smith.

Gavin has expanded the firm previously, including by adding a solo practioner in Bedford years back, before that attorney in that office decided to go back out on his own. She said this latest stop in Charlottesville won’t be the firm’s last.

“I’m always planning and plotting,” she said. “Continued expansion is on the horizon.”

Click here to read the full story in Richmond BizSense