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What Is a West Virginia Non-Compete Agreement?

A West Virginia non-compete agreement is a type of employment contract relying on restrictive covenants that allows companies and businesses to protect their business interests by obtaining a written promise from their employees. This written promise states the details regarding the fact that the employee may become privy to some of the company’s trade secrets and can leak this information to competitors. In a non-compete agreement, the employee promises to refrain from working with competitors for a period of time and within a certain geographic area after the employment relationship ends.

A non-competition agreement can be its own contract. However, an employment agreement may also have a non-compete clause within it. Before drafting a non-compete, West Virginia business owners should seek legal advice from a law firm practicing employment law. Doing so will help employers be more assured of their contract’s enforceability in the event they must file a lawsuit against a former employee in West Virginia courts. They'll also gain a better understanding of state laws while having the benefit of attorney-client privilege in the event that they have questions about how public policy or geographic scope may affect the drafting of their document.

Hiring an independent contractor to work for your West Virginia business? Download an independent contractor agreement form now!

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Applicable State Laws - W. Va. Code §§ 47-11E-1 to 47-11E-5

West Virginia’s non-compete laws zero in on agreements with physicians. The law states that non-compete agreements with physicians may not last longer than one (1) year and can not affect more than 25 road miles from the physician's primary place of employment.

For all other non-competes, they may not be written any more broadly than necessary to protect legitimate business interests, must be reasonable in time and geographic scope, must not cause undue hardship on the former employee, and must not violate public policy.

Protect your West Virginia business by also using a West Virginia non-disclosure agreement form. Download a West Virginia non-disclosure agreement form now!

How to Write a West Virginia Non-Compete Agreement

To write a West Virginia non-compete agreement, include the following clauses:

  • Purpose. This clause explains the purpose of the non-compete agreement: to protect the legitimate interests of the business. It also identifies the parties and their roles as well as provides the effective date.
  • Non-compete. This clause explains the restrictions the employee is obligated by when they sign the non-compete agreement. It includes the time period, geographic area, general and specific business practices, working for general and specific competitors, and non-solicitation of employees, customers, and clients.
  • Time period. This clause explains when the time period begins: either at the start of the employment relationship or when it terminates.
  • Purchase option. This clause states whether the employer will allow the employee to buy their way out of the contract. If this is an option, the amount they must pay is listed in this clause.
  • Jurisdiction. This clause states that West Virginia laws will govern the agreement.
  • Confidential information. This clause defines confidential information as any and all technical and non-technical information provided by the employer that includes, and is not limited to, any data or other proprietary information related to products, inventions, plans, methods, processes, developmental or experimental products, intellectual property, software, databases, customer lists, vendor or supplier lists, marketing information, reports, business plans, financial information, or other information related to the employer or their customers, clients, or consultants under the terms of the non-compete.
  • Permitted disclosure. This clause explains when confidential information may be disclosed without it being considered a violation of the terms of the non-compete. Examples include when information becomes public through no fault of the signing employee, when the signing employee discovers the information on their own without a breach of another person, and when the employer provides written consent to release specific information to the public.
  • Confidentiality. This clause states that the employee understands that the information they may access is confidential. They agree they will not directly or indirectly communicate it to others. They also agree they will not use the information for any reason other than to further the business.
  • Consultants and employees bound. This clause states that the agreement binds both consultants and employees to keep the information in strict confidence. It states that they are also on a need-to-know basis.
  • Return of materials. This clause states that either when the relationship between the parties ends or when the employer requests it, the employee must return all documents and other tangible material that represents the confidential information of the business and any existing copies. The clause also states that the employer will inform the employee if there is an unauthorized loss of confidential information.
  • Remedies. This clause explains the legal remedies the business is entitled to pursue in the event the employee breaches the non-compete agreement. Examples include the recovery of court costs and reasonable attorney fees, the award by a court of a temporary restraining order or preliminary injunction against the unauthorized use of information, as well as all other legal remedies available under West Virginia law or as a matter of equity.
  • Choice of law. This clause states that the parties agree to choose West Virginia law to govern the agreement and any arising disputes.
  • Entire agreement. This clause states that the entire agreement may only be amended in writing, and only if the parties sign it.

Finally, both the employer and the employee must sign and print their names. The signatures must be dated. Each should keep a finalized copy for their records.

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