In evaluating non-competition or other restrictive covenants in employment contracts, courts currently have no authority under Virginia law to “blue pencil” or otherwise re-write an illegal or unenforceable provision in an attempt to make it enforceable. Thus, it is imperative that non-compete and non-solicitation agreements be drafted with an understanding of current Virginia law and an employer’s specific needs. Notwithstanding the lack of authority for “blue penciling,” it is common for employers to include a “blue pencil” clause in their noncompetes that would ostensibly permit a court to re-write an unenforceable provision to render it enforceable. Although the Supreme Court of Virginia has not spoken on the issue, multiple Virginia circuit courts have held that such “blue pencil” clauses are invalid and have no effect. The question remains whether the very inclusion of a “blue pencil” clause would invalidate the non-compete in its entirety. The U.S. District Court for the Eastern District of Virginia recently declined to invalidate a non-compete and non-solicitation clause merely because the agreement contained a “blue pencil” clause; however, the Supreme Court of Virginia has not yet ruled on the issue. All employers are recommended to review their restrictive covenants yearly to ensure compliance with the ever-evolving law on this issue.

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