Violations of Non-Compete Agreements

If the non-compete is signed at the time of initial hiring, the job itself generally provides adequate consideration. If the non-compete is introduced after the employee has already been working — which is increasingly common — the employer must provide additional consideration beyond continued employment. This might include a raise, promotion, bonus, access to specialized training, or another tangible benefit. A non-compete that is presented to an existing employee without any new consideration may be unenforceable.

West Virginia courts evaluate the reasonableness of each restriction in the context of the specific employment relationship. A non-compete that prevents a specialized sales representative from working for any competitor within the territory they served for one year may be reasonable, while a non-compete that prevents the same employee from working anywhere in the industry nationwide for five years is almost certainly unreasonable. Courts look at the nature of the employer's business, the employee's role and access to confidential information, the competitive landscape, and the impact the restriction has on the employee's ability to earn a living.

Some courts apply the "blue pencil" doctrine, which allows a court to modify an overly broad non-compete to make it reasonable rather than striking it down entirely. West Virginia courts have the discretion to narrow the geographic scope, duration, or activity restrictions to bring the agreement within enforceable bounds. This means that even if your non-compete is partially unreasonable, a court might enforce a modified version rather than throwing it out completely.

The most common scenario is a former employee who has taken a new position and receives a cease-and-desist letter from their former employer threatening legal action for violating the non-compete. This is often the employer's opening move, and it does not necessarily mean the non-compete is enforceable or that the former employer will actually file suit. An attorney can evaluate the agreement's enforceability and develop a strategy for responding.

Job candidates who disclose an existing non-compete sometimes find that prospective employers are reluctant to hire them. An attorney can review the agreement and provide an assessment of its enforceability, which can help the new employer make an informed hiring decision. In some cases, the new employer may be willing to proceed if the non-compete is likely unenforceable or if the new position does not fall within the agreement's restrictions.

Employees who are presented with a non-compete after they have already been working for the company face a difficult choice. Refusing to sign could jeopardize their current employment, but signing without understanding the terms could limit their future career options. An attorney can review the proposed agreement, advise on negotiation strategies, and evaluate whether the employer has provided adequate consideration to make the agreement enforceable.

Employees who are fired sometimes discover that their employer expects them to comply with a non-compete even though the employer ended the relationship. The enforceability of a non-compete after involuntary termination is a contested area of law. Some courts have held that an employer who terminates an employee without cause has weakened its position to enforce a non-compete, particularly when the agreement was not part of a severance package with separate consideration. This is fact-specific and varies by jurisdiction.