Are Non-Competes Still Enforceable?
Non-compete agreements have long been used by employers to protect their business interests by restricting employees from working for competitors or starting competing businesses after leaving employment. However, the legal landscape surrounding non-competes is shifting rapidly, and employers should take note.
Traditionally, courts have enforced non-competes if they are reasonable in scope, geography and duration, and if the employer shows a legitimate business interest to protect, such as trade secrets or customer relationships. In recent years, however, lawmakers and regulators have increasingly moved to limit or even prohibit non-competes.
In 2024, the Federal Trade Commission issued a rule banning non-competes for most employees nationwide, but a federal court in Texas blocked the rule from going into effect, and the appeals process is ongoing.
Many states have enacted legislation regulating non-competes. In 2020, Virginia banned non-competes for “low wage employees” (currently defined as those earning less than $1,463.10 per week, or $76,081 per year). Effective July 1, 2025, non-competes in Virginia are also unlawful for any employee who is classified as non-exempt (hourly) under the federal Fair Labor Standards Act.
So, are non-competes enforceable today? The answer depends on many factors, such as where the employee works, how much they earn and how the agreement is written. Carefully drafted non-competes may still be enforceable in certain cases, but employers should not assume that their old non-compete forms remain valid.
Given the uncertainty, many businesses are turning to alternatives like non-solicitation agreements (to prevent poaching of customers and employees) and confidentiality agreements. These options are often easier to enforce and less likely to attract legal challenges.
The bottom line is that non-competes are under heavy scrutiny. Employers should review their existing agreements and work with counsel to update their strategies for protecting their business in this evolving legal environment.
Maureen E. Carr, a shareholder at Bean, Kinney & Korman, specializes in employment law and commercial litigation. Known for her legal insight and collaborative style, she represents clients in complex disputes across the DMV. Maureen grew up in Arlington where she still lives with her husband and two children.
Awards/Honors:
Best Lawyers in America in Employment Law—Individuals, Employment Law—Management and Litigation—Labor and Employment, 2024-2026
Virginia Lawyers Weekly, “Influential Women of Law”, class of 2023
Arlington Magazine Top Attorney—Employment (Employee), Employment (Employer), 2019, 2021-2025
Virginia Women Attorneys Association, State Board of Directors, 2018 to present