Legal Question in Business Law in Virginia

Non Compete & Undue Harship

I am a dance teacher in Virginia who signed a contract that has a non-compete clause that restricts me for 36 months within 20 miles of the company. Does this contract create undue hardship because I received a degree in dance and teaching is my livelihood? If not, how do I get around it? I want to teach again, and I don't want to have to drive 25 miles away to do it!! Please advise me...

The contract specifically says I may not ''own, manage, operate, join, control, finance, or participate in the ownership, management, operation, control or financing of, or be connect as an officer, director, employee, partner, principal, or use or permit Employee's name to be used in connection with, any business of enterprise which is competitively engaged in the same type of business conducted by Company and is located or conducts business in or within 20 miles of Company's place of business at all locations.''

Asked on 4/23/07, 6:27 am

1 Answer from Attorneys

David Kaufman Kaufman Law, A Professional Corporation
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Re: Non Compete & Undue Harship

Noncompete agreements in Virginia are evaluated using 5 basic principles:

1. Agreements not to compete are restraints on trade and thus are not favored.

2. The employer bears the burden of showing that

a. the restraint is reasonable and

b. no greater than necessary to protect its legitimate business interests.

3. The restraint must not be unduly harsh or oppressive in curtailing the employee's legitimate efforts to earn a living.

4. The restraint must be reasonable in light of sound public policy.

5. Finally, the language of the agreement will be strictly construed and, if in any way ambiguous, it will be construed in favor of free competition and against the employer.

It sounds like this agreement you signed is very onerous. 36 months and 20 miles sounds to me like it is overkill. While it is hard to know exactly what a court would do, and of course there are details missing from your question, you might have a good argument that the owner went too far.

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Answered on 4/23/07, 7:37 am

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