Virginia non-compete law: Va. Code 40.1-28.7:8 for recruiters

Virginia does not ban non-competes across the board. It bans them for particular groups and attaches conditions to the rest. Since 2020, Va. Code 40.1-28.7:8 has barred employers from entering into, enforcing or threatening to enforce a non-compete with a "low-wage employee," a category that since July 1, 2025 includes anyone entitled to overtime under the Fair Labor Standards Act. On July 1, 2026, two more changes took effect: health care professionals were added to the ban, and a non-compete became unenforceable against someone discharged without severance or other payment, unless the discharge was for cause. For recruiters, Virginia questions turn on the candidate's role, pay classification and how their job ends.

For general questions, see non-compete questions for candidates; for agency and client clauses, see non-solicitation clauses for recruiters.

Who is protected

Subsection B of Va. Code 40.1-28.7:8 says: "No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee or health care professional."

The 2026 amendments

• SB 170, Chapter 883. Approved April 13, 2026, effective July 1, 2026. New subsection C: "No covenant not to compete between an employer and an employee is enforceable if such employer discharges such employee from employment without providing severance benefits or other monetary payment to such employee, unless such employer discharges such employee for cause. Such severance benefits or other monetary payment shall be disclosed upon execution of the covenant not to compete."
• HB 627, Chapter 1113 (identical to SB 128). Approved May 14, 2026, effective July 1, 2026. Adds health care professionals to subsection B, with exceptions in subsections H and I: covenants in the sale of a health care practice that are reasonable in scope, duration and area; repayment of recruitment-related costs by a professional employed fewer than five years; and a narrow customer non-solicit limited to customers the professional had material contact with, which may not stop the professional from telling patients they are still practicing, their new contact information and their right to choose a provider.

The bill histories do not say how subsection C applies to covenants signed before July 1, 2026. That is a question for counsel.

Customer service, non-solicits and confidentiality

The statute's definition carries a limit for everyone it covers: a covenant not to compete "shall not restrict an employee from providing a service to a customer or client of the employer if the employee does not initiate contact with or solicit the customer or client." Subsection H(1) also preserves nondisclosure agreements protecting trade secrets and proprietary or confidential information.

The statute does not define a general non-solicitation agreement for employees outside health care. Whether a given non-solicit is a "covenant not to compete" under the definition is a legal question; record it separately and let counsel decide.

Enforcement

• Lawsuits. An employee or health care professional may sue a former employer or other person that attempts to enforce a prohibited covenant, within two years of the latest of signing, learning of the covenant, the end of employment or the employer's first step to enforce. The court may void the covenant and award lost compensation, damages, liquidated damages, and reasonable attorney fees and costs.
• Civil penalty. $10,000 per violation of subsection B or C, as determined by the Commissioner of Labor and Industry.
• Retaliation. Employers may not discharge, threaten or retaliate against a low-wage employee or health care professional for suing under the section.
• Posting. Every employer must post the section or an approved summary where other required notices are posted.

The section has no choice-of-law or venue provision. A Virginia candidate whose agreement names another state's law is a counsel question.

Screening a Virginia candidate

Virginia's own salary history ban took effect July 1, 2026, so do not ask what the candidate earns to work out whether they are "low-wage"; see the Virginia salary history ban guide. Whether a role is overtime-eligible, and what license a health care candidate holds, are fair questions that bear on the job itself.

VIRGINIA CANDIDATE — restrictive agreements

1. "Have you signed a non-compete, a non-solicit, or a confidentiality
    agreement that could affect this role?"
2. "Is your current role paid hourly with overtime, or salaried
    exempt?"
3. "Do you hold a license from the Board of Medicine, Nursing,
    Counseling, Optometry, Psychology or Social Work?"
4. "Does the agreement mention severance or a payment if you are let
    go?"
5. "Does it restrict serving clients who contact you, or only
    reaching out to them?"
6. "Could the hiring company's lawyer see it, as far as it allows?"
Always: "We don't want any confidential information or client lists
from your current employer."

• Do not tell a candidate they are "low-wage" or not. The statute's averaging rules and exclusions need the numbers, and the numbers are not yours to collect.
• Do not coach a candidate to wait for clients to call them. The customer-service limit in the definition is a fact of the statute; how it applies to their conduct is legal advice.
• Do flag health care candidates to the hiring company early, because the 2026 changes are new and the exceptions are specific.

Three examples

These are illustrations, not conclusions about any real person's agreement.

• The hourly coordinator. An overtime-eligible logistics coordinator mentions a one-year non-compete. Under subsection B and the July 2025 definition, an employer may not enforce or threaten to enforce a non-compete against a low-wage employee, and overtime eligibility alone makes someone low-wage. Record the facts and pass them on; counsel confirms.
• The commissioned rep. A salesperson paid mostly in commissions falls outside the low-wage definition by its own terms, so the earnings test does not protect them. Their agreement needs a closer look.
• The nurse practitioner. A candidate licensed by the Board of Nursing signed a non-compete with a health system. From July 1, 2026 health care professionals are in subsection B, with the specific exceptions in subsections H and I. Flag it before the first interview.

When your client is the Virginia employer

A Virginia client hiring into an overtime-eligible role cannot use a non-compete for that person at all. For other roles, a client that wants one should consider the new subsection C: a covenant may be unenforceable if the person is later let go without cause and without the severance or payment that had to be disclosed at signing. Those are drafting decisions for the client's counsel, but asking whether the client's template reflects the July 2026 changes is a fair question before the offer goes out.

Federal status

As of October 2026 there is no federal ban. The FTC's Noncompete Rule page records the August 20, 2024 court order; the Commission voted on September 5, 2025 to accede to the vacatur; and a February 12, 2026 notice removed the rule from the Code of Federal Regulations. The FTC still acts against individual employers, as with Rollins in April 2026.

Checklist

• Overtime eligibility and health care licensure noted for every Virginia candidate with a restrictive agreement.
• Severance or payment terms in the agreement noted as facts, without dollar amounts.
• No pay questions asked to test the low-wage threshold.
• Client templates checked against the July 1, 2026 amendments.
• Statute and DOLI's annual notice re-checked before relying on this page; licensing in the Virginia staffing agency license guide.