West Virginia Non-Compete Agreement Template

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Updated July 29, 2022

A West Virginia non-compete agreement allows an employer to safeguard its protectable interests by restricting an employee from working in the same business. The non-compete must be for a limited timeframe and geographical area. Attorneys are prohibited from entering into a non-compete and physicians have strict requirements.

Legally Enforceable?

Yes, a non-compete is legal and enforceable in West Virginia if it is reasonable and:

  1. Is no greater than is required for the protection of the employer;
  2. Does not impose undue hardship on the employee; and
  3. Is not injurious to the public.

Source: Gant v. Hygeia Facilities Foundation (1989)

Physicians (limited)

A licensed physician can enter into a non-compete under the following requirements:

  • 1-year limit. Cannot exceed a 1-year term starting when the physician left the employer;
  • 30-mile limit. Cannot be more than 30 miles from the physician’s principal place of practice from the employer; and
  • The physician must quit. The physician must leave the employer for the non-compete to become in effect. If the employer terminates the physician, the non-compete becomes invalid.

Source: § 47-11E-2

Attorneys (prohibited)

A licensed attorney cannot enter into a non-compete agreement.

Source: Rule 5.6

Protectable Employer Interest

A “protectable employer interest” must be made by an employer in a non-compete. This must be a skill that is beyond the general knowledge in administrative duties of the business.

A court ruled the following:

“When the skills and information acquired by a former employee are of a general managerial nature, such as supervisory, merchandising, purchasing and advertising skills and information, a restrictive covenant in an employment contract will not be enforced because such skills and information are not protectable employer interests.”

Source: Helms Boys, Inc. v. Brady (1982)

Continued Employment

The promise of continued employment is not viewed as sufficient consideration. There must be “new consideration” that is outside what the typical employee would receive while working for the employer.

Source: Environmental Products Co. v. Duncan (1981)

Maximum Term

Determining what is reasonable depends on the time period and territorial area of the non-compete. If both are not included, chances are a court will find the agreement to be invalid.

Reasonable

2 years and a 50-mile radius were reasonable.

Source: Huntington Eye Assocs., Inc. v. LoCascio (2001)


3 years and a 30-mile radius were reasonable.

Source: Gant v. Hygeia Facilities Foundation, Inc. (1989)


5 years and 10 counties were reasonable.

Source: Appalachian Laboratories, Inc. v. Bostic (1987)

Unreasonable

2 years and a nationwide non-compete were unreasonable.

Source: McGough v. Nalco Co. (2007)


1 year and without territorial limits were unreasonable.

Source: Pancake Realty Co. v. Harber (1952)

Blue Penciling

A court will modify a non-compete if it is overbroad or unreasonable. Although, it will keep in mind that this practice of applying a “blue pencil” may encourage employers to “draft overly broad agreements.”

Therefore, “no court should trouble itself to rewrite an inherently unreasonable” agreement to make it reasonable.

Source: Reddy v. Community Health Foundation of Man (1982)

“Non-Compete” Definition

“Covenant not to compete” means any contract that restricts the right of a physician to practice medicine in any geographic area of the state for any period of time following the expiration of the physician’s contract with his or her employer, or upon the termination of the physician’s contract by the physician’s employer.

Source: § 47-11E-1