Pay-threshold ban
Virginia Non-Compete Law (2026): Void below the pay floor
Virginia now blocks non-competes along three independent lines. The original rule voids them for low-wage employees, meaning anyone paid less than the state average weekly wage, currently $1,507.01. A 2025 amendment added every worker entitled to federal overtime, which converts the test from a pay question into a classification question and sweeps in well-compensated non-exempt staff. Two 2026 laws then reached beyond wages entirely: licensed health care professionals cannot be bound at all, and no employee of any kind can be held to a covenant after being fired without cause unless the employer pays severance it disclosed up front.
The rule
How Virginia treats non-compete agreements
The most consequential change is also the least discussed: SB 170 shifts enforceability onto how the employment ended rather than how the clause was drafted, and the statute defines neither 'cause' nor how much severance is enough. Employers who leave those terms undefined in the agreement are handing the argument to the departing employee. Note too that all three 2026 changes are strictly forward-looking — a covenant signed on June 30, 2026 is judged under the old rules until it is amended or renewed. The $10,000 civil penalty runs per violation and applies to entering into, enforcing or threatening to enforce a prohibited covenant, so exposure can accumulate before any lawsuit is filed.
If you are an employer
Run four separate checks before you rely on a Virginia covenant — the worker clears $78,364.52, is properly exempt from overtime, holds no license from the six named health boards, and either left voluntarily, was fired for cause, or is receiving severance you promised in writing when the agreement was signed.
If you are a worker
Virginia gives you four ways out: earning under $78,364.52, being overtime-eligible, holding a license from the Boards of Medicine, Nursing, Counseling, Optometry, Psychology or Social Work, or being let go without cause and without severance. Any one of them voids the covenant and lets you recover lost pay and attorney fees.
| Classification | Low-wage and overtime-eligible ban, plus healthcare and without-cause prohibitions |
|---|---|
| Pay threshold | $1,507.01 per week, or $78,364.52 annualized, for calendar 2026. The figure tracks the Commonwealth's average weekly wage and is republished each year by the Department of Labor and Industry. Pay is only one route into coverage: anyone entitled to overtime under 29 U.S.C. § 207 is a low-wage employee no matter what they earn, and licensed health care professionals are protected without reference to earnings at all. Workers whose compensation is predominantly commissions, incentives or bonuses fall outside the definition. |
| Maximum term | No statutory ceiling. For covenants that remain permissible, duration is tested under ordinary Virginia reasonableness principles. |
| Notice or consideration | There is no pre-signing disclosure mandate for the covenant itself, but two disclosure-adjacent duties apply. Employers must post a copy or summary of § 40.1-28.7:8 alongside other required workplace notices, and under the 2026 without-cause rule any severance or monetary payment the employer intends to rely on has to be disclosed at the time the covenant is executed. |
| Primary statute | Va. Code § 40.1-28.7:8, as amended by 2025 Acts ch. 585 and 2026 Acts chs. 883, 1113 and 1114 |
Detail
What has changed, and what is still moving
Legislation 2024–2026
Three waves in two years. SB 1218 (2025), effective July 1, 2025, expanded the low-wage definition to capture every FLSA overtime-eligible worker regardless of pay. In 2026 the General Assembly went further: HB 627 with companion SB 128 prohibits non-competes with licensed, registered or certified health care professionals, and SB 170 blocks enforcement against any employee fired without cause who gets no severance. Both 2026 laws took effect July 1, 2026 and apply only to agreements entered into, amended or renewed on or after that date.
Bills to watch
No significant restrictive bills pending. The 2026 session already delivered the healthcare ban and the without-cause rule, and Governor Spanberger's April 11, 2026 recommendation on the non-solicitation language was resolved during the reconvened session.
Leading cases
Virginia's judge-made framework still governs whatever the statute leaves untouched. Modern Environments, Inc. v. Stinnett (Va. 2003) and Omniplex World Services Corp. v. US Investigations Services (Va. 2005) hold that the employer bears the burden of proving the restraint is no broader than needed, that ambiguity is construed against the drafter, and that Virginia courts do not rewrite an overbroad covenant. Litigation under § 40.1-28.7:8 itself is still developing; the private right of action and the $10,000 penalty have generated more demand letters than reported opinions.
If you have one in hand
What can make a non-compete unenforceable in Virginia
- You earn below the threshold. $1,507.01 per week, or $78,364.52 annualized, for calendar 2026. The figure tracks the Commonwealth's average weekly wage and is republished each year by the Department of Labor and Industry. Pay is only one route into coverage: anyone…
- The scope is wider than the interest behind it. A restriction that reaches beyond the customers, trade secrets or goodwill the employer can actually point to is the most common reason a covenant fails in Virginia.
Whether any of these applies turns on the wording of your own agreement, your role and the case law your court follows. This page maps the statutory landscape; it does not replace advice on a specific contract.
FAQ
Virginia non-compete questions
Are non-compete agreements enforceable in Virginia?
Virginia now blocks non-competes along three independent lines. The original rule voids them for low-wage employees, meaning anyone paid less than the state average weekly wage, currently $1,507.01. A 2025 amendment added every worker entitled to federal overtime, which converts the test from a pay question into a classification question and sweeps in well-compensated non-exempt staff. Two 2026 laws then reached beyond wages entirely: licensed health care professionals cannot be bound at all, and no employee of any kind can be held to a covenant after being fired without cause unless the employer pays severance it disclosed up front.
How long can a non-compete last in Virginia?
No statutory ceiling. For covenants that remain permissible, duration is tested under ordinary Virginia reasonableness principles.
Is there a minimum salary for non-competes in Virginia?
$1,507.01 per week, or $78,364.52 annualized, for calendar 2026. The figure tracks the Commonwealth's average weekly wage and is republished each year by the Department of Labor and Industry. Pay is only one route into coverage: anyone entitled to overtime under 29 U.S.C. § 207 is a low-wage employee no matter what they earn, and licensed health care professionals are protected without reference to earnings at all. Workers whose compensation is predominantly commissions, incentives or bonuses fall outside the definition.
What notice or consideration does Virginia require?
There is no pre-signing disclosure mandate for the covenant itself, but two disclosure-adjacent duties apply. Employers must post a copy or summary of § 40.1-28.7:8 alongside other required workplace notices, and under the 2026 without-cause rule any severance or monetary payment the employer intends to rely on has to be disclosed at the time the covenant is executed.
Sources
How this entry was checked
- Primary source. Va. Code § 40.1-28.7:8, as amended by 2025 Acts ch. 585 and 2026 Acts chs. 883, 1113 and 1114 — the statutory text itself.
- Secondary sources consulted. Va. Code § 40.1-28.7:8 (Virginia LIS), Virginia DOLI Notice of the Average Weekly Wage for 2026 (January 6, 2026), SB 1218 (2025), HB 627 and SB 128 (2026), SB 170 (2026), Littler alert on the threshold amendment, Holland & Knight, McGuireWoods and Duane Morris April 2026 alerts, Foley & Lardner June 2026 healthcare alert, Seyfarth Q1 2026 healthcare non-compete update.
Check it against a third party
None of these is ours. If a figure here matters to a decision, verify it:
- Federal Trade Commission — non-compete hub
- Economic Innovation Group — State Noncompete Law Tracker
- Fair Competition Law (Beck Reed Riden) — 50-state legislation tracker
- GAO-23-103785 — Noncompete Agreements (May 2023)
This page is general legal information published by Jurizmo and is not legal advice, does not create an attorney-client relationship, and may not reflect amendments enacted after the review date above. Consult a licensed attorney in the relevant state before acting on any agreement.