Pursuant to Va. Code § 40.1-28.7:8, the term “low-wage employee” as applied to covenants not to compete has been calculated by the Virginia Department of Workforce Development and Advancement to include all employees who earn an average of less than $1,410 per week. “Low-wage employee” also includes an individual who has independently contracted with another person to perform services independent of an employment relationship and who is compensated for such services by such person at an hourly rate that is less than the median hourly wage for the Commonwealth for all occupations as reported, for the preceding year, by the Bureau of Labor Statistics of the U.S. Department of Labor.
Any employer who enters into, enforces, or threatens to enforce a covenant not to compete with any low-wage employee as defined by the statute will be in violation of the statute, and subject to a suit for damages, attorneys’ fees, and liquidated damages, and civil monetary penalties assessed by the Commissioner.
Additionally, the section contains a posting requirement for employers which advises,
“Every employer shall post a copy of this section or a summary approved by the Department in the same location where other employee notices required by state or federal law are posted.” Posting a copy of the Code will meet the requirements for notice to employees required under the law.
For any questions about current wage rates or requirements under the law, please contact the Department’s Labor & Employment Law Division at laborlaw@doli.virginia.gov.
