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March 2015 Archives

An Overview of Virginia "Non-Compete" Law Part 1: Are Non-Compete Agreements Legal in Virginia?

Over the years, I have heard various myths about employment contracts, specifically as they relate to non-competition provisions. A typical "non-compete" clause provides that the employee cannot leave the company and solicit or provide similar services to the company's customers for a specific period of time. Often, the agreement further limits the employee's ability to participate in any similar business activities within a certain geographic radius of the company's endeavors.
I am surprised by the number of people who believe non-compete agreements are illegal in Virginia. This is simply not true. Clients often confuse "right to work" with its connection to non-compete agreements. In fact, Virginia is a "right to work" state; but, this has very little relation to the legality of a non-compete agreement.
The essential meaning of "right to work" is that a worker cannot be required to join a labor union as a prerequisite to employment within a specified field. That is a far cry from meaning that non-compete agreements are illegal, or that an employee who has signed a non-compete can always ignore its provisions and has a right to work wherever he or she wants.
To the contrary, under Virginia law, non-compete agreements are disfavored, but quite legal. Whether the agreement is enforceable is a slight, but important, distinction. Whether a non-compete provision is enforceable is a question for the Courts. Each agreement, in each industry, for each employee, is examined on a case-by-case basis. The employer bears the burden of proving that the agreement: (1) is drafted to protect the employer's legitimate business interest, (2) is not unduly burdensome on the employer's ability to earn a living, and (3) does not violate public policy. In making such a determination, a Court will look to the scope and reasonableness of the agreement's geographic and durational limitations.
Regardless, the determination is hugely important for the parties involved. Businesses must protect their interests against unfair competition. Workers need to make a living without fear of restraint on the ability to practice their craft.
With such high stakes, it behooves both employers and employees alike to consult with an experienced attorney in the event a non-compete agreement may be at issue. Don't hesitate to contact an attorney at the Duff Law Firm if you or your business requires assistance in litigating your non-compete agreement.

What is Discovery and Why is it Necessary? Part 2 of 3

In the last blog posting on this subject, we discussed the types of discovery we use to collect information and documentation about the issues involved in a divorce. In this blog, we will discuss how we actually use the information and documentation so collected at a custody and visitation trial.
Sally, my client, has been a stay-at-home mother for the duration of the children's lives, and her number one goal is to keep primary custody of her children. Assuming that Henry has also asked the Court to give him primary custody of the children, I want to understand why Henry believes it is in the best interests of the children for him to have primary physical custody. As you know from the last posting, one of the tools I have is to send Henry's counsel a set of Interrogatories, i.e., written questions that he must answer under oath. In these Interrogatories, I will ask Henry why he should have primary custody instead of Sally. I will ask him about his work schedule and what day care arrangements he will have if he is granted primary physical custody. I will ask Henry to identify and describe where he is living so that I can investigate whether he has appropriate living accommodations for the children. I specifically want to know if there are sufficient bedrooms for the children and Henry, and whether any other person lives with Henry, whether that person is a roommate or his girlfriend.
More broadly, I also want to know what role Henry will say about the various factors that the law (Virginia Code § 20-124:3) says that the Court must consider in determining the children's best interests for custody and visitation decisions. For a summary of some of those factors, please see our prior entry at /2014/02/20/the-childs-best-interest-when-deciding-custody-cases/. In particular, in this case, I want to know the role that Henry has played in the upbringing of the children prior to the separation, since he claims he should now be primarily responsible for their custody and care.
In his discovery responses, Henry states that he should have custody of the children because every night when he comes home, Sally is passed out drunk, having left the children unattended to their own devices, and so he is very concerned for their safety. In response to the question about other household members, Henry invokes his Fifth Amendment right against self-incrimination and does not give a substantive answer.
Sally reads Henry's discovery responses and is completely beside herself. Sally cannot remember the last time she even had a glass of wine, much less "passed out drunk," as Henry claims. Her days are consumed with getting the children to school and their activities. Most nights, Henry came home after 11:00 p.m. and Sally was asleep, utterly exhausted from keeping up with the children.
I can now build Sally's custody case. Henry's Interrogatory responses allow me to anticipate what Henry will testify to at trial. Based on Henry's discovery responses, his case will focus primarily on factors two, three and four of Virginia Code §20-124.3. Having seen Henry's answers to my Interrogatories, and having spoken to Sally about her version of facts, I can begin considering questions to ask Henry that undermine what he claims to be the facts. For example, if Sally is so frequently "passed out drunk," and Henry is so worried about the children, why did he move out of the house and leave them in Sally's sole care? Just a thought.
Additionally, Henry's discovery responses help inform me what witnesses we will need to rebut his trial testimony. For example, I intend to subpoena one or two of the children's teachers to testify that the children are always appropriately groomed, bring in their homework on time and overall are doing great in school. One of the teachers will testify that Sally is their go-to person when they need help organizing field trips or other activities. I intend to subpoena one or two of the children's coaches to testify that Sally brings the children to all of their practices and games. I will subpoena some friends to testify that they have never seen Sally intoxicated but, to the contrary, have seen Henry drink heavily at some parties. I will interview all these individuals before trial to make sure that I understand what they know and what their testimony will be at trial. Stay tuned for my next blog: Discovery in equitable distribution cases.

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