Janitor Rule in a Fairfax Non-Compete Agreement

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If you work in Fairfax, there is a good chance you have come across a non-compete agreement or know someone who has. Non-compete agreements are types of employment contracts that restrict where an employee can work after they leave a current position.

The purpose of a non-compete agreement is to protect an employer from a departing employee who might begin working at a competing company using skills and knowledge the employee acquired at their former employer. However, Virginia courts dislike non-compete agreements as they restrict an individual’s ability to earn a living and interfere with a free labor market but if they are properly written, they will be enforced.

One way they can be improperly written is if they are overbroad. One way to tell if you have an overly broad non-compete agreement in Fairfax is to see if it violates the janitor rule. Read on or contact a seasoned lawyer at the Spiggle Law Firm to learn more about the janitor rule in a Fairfax non-compete agreement.

Aspects of the Janitor Rule

The janitor rule is not an official legal rule. Rather, it is a nickname for a rule-of-thumb for quickly determining if a non-compete agreement is overbroad. Basically, the janitor rule states that if a non-compete agreement in Fairfax prevents a former employee from working for a competitor in any capacity, even as a janitor, then there is a very good chance a Virginia court will deem the non-compete agreement as unenforceable.

This rule finds its origins in Virginia court cases, such as Strategic Enter. Solutions, Inc. v. Ikuma, 77 Va. Cir. 179 (2008) and Home Paramount Pest Control Co. v. Shaffer, 718 S.E.2d 762 (Va. 2011). In these cases, the courts recognized the non-compete agreements at issue prevented the former employees from working in any capacity with a competitor, even in a completely unrelated job, such as a janitor.

The janitor rule reinforces the idea in Fairfax County and the rest of Virginia that non-compete agreements may exist to protect the employer but not do so in a way that is unfair to the employee. If a non-compete agreement prevents a former executive or salesperson from working in a completely unrelated job, it is highly unlikely that the non-compete agreement is protecting the employer from unfair competition. For more information, seek the services of a well-established attorney.

Janitor Rule in Action

We can look at an example non-compete clause to show the janitor rule in action. Let’s say you have a non-compete clause that states: The employee shall not actively engage (whether it be as an employee, shareholder, associate, consultant, partner or individual) in any services that are in competition with the employer for a period of 12 months from the date of termination with the employer.

Because this clause has no further information as to the type of job the employee is prohibited from engaging in with a competitor, it is overly broad. A plain reading of this non-compete clause states that the employee may not work for any employer in any capacity within 12 months of leaving their former job. Without the proper qualifying language to explain what kind of jobs would be prohibited, this version of a non-compete clause is in violation of the janitor rule.

Now taking a look at a different, but similar hypothetical non-compete clause: The employee shall not actively engage (whether it be as an employee, shareholder, associate, consultant, partner or individual) in any services that are in competition with the employer for a period of 12 months from the date of termination with the employer, where such services are in direct competition with the employer and are the same as the services the employee previously provided the employer.

Here, there is additional language that limits the non-compete restrictions to only jobs at a competitor that involve the same job duties as the previous position. In this example, the employee could probably work for a competing company as a janitor and not be a violation of the non-compete agreement. Therefore, this example is probably not in violation of the janitor rule in a Fairfax non-compete agreement.

Contact an Attorney to Find Out More Information

If you want to learn more about non-compete agreements in Fairfax County and think you might need legal advice concerning the janitor rule in a Fairfax non-compete agreement, consider contacting us at the Spiggle Law Firm for a no-cost online review of your case.

If you are not sure about contacting an attorney, that is okay. You can check out our Resources Page where you will find numerous other no-cost resources like our Case Assessment Calculator.