{ "type": "practice-guide", "canonical": "https://openagreements.org/practice-guides/non-compete/us/west-virginia", "links": [ { "rel": "self", "href": "https://openagreements.org/practice-guides/non-compete/us/west-virginia.json", "type": "application/json" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/non-compete/us/west-virginia", "type": "text/html" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/non-compete/us/west-virginia/markdown", "type": "text/markdown" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/non-compete/us/west-virginia/json", "type": "application/json" } ], "data": { "topic": "non-compete", "state": "west-virginia", "frontmatter": { "title": "Non-Competes in West Virginia", "description": "West Virginia uses the common-law Reddy reasonableness test for employee non-competes, a strict anti-blue-pencil rule, an independent-consideration requirement for mid-employment covenants, special treatment for non-piracy clauses, a physician statute, and more flexible review for sale-of-business covenants.", "state": "West Virginia", "lastReviewed": "2026-06-02", "license": "CC BY 4.0", "authors": [ "steven-obiajulu" ], "summary": { "enforceability": "reasonable", "bottomLine": "West Virginia enforces employee non-competes under the common-law Reddy reasonableness test, but a facially unreasonable covenant is void with no judicial narrowing, and a physician statute caps medical covenants at one year and thirty miles.", "keyLaw": "common law (Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368 (1982))", "exceptions": "Physician covenants capped at one year/30 road miles and void on employer termination (W. Va. Code § 47-11E); sale-of-business lesser scrutiny; non-piracy clauses less restrictive", "courtNarrowing": "no", "appliesToContractors": "unclear", "extendedForBreach": "Open question", "maxLength": "No general statutory limit; physician covenants capped at 1 year", "noticeRequirement": "None", "incomeThreshold": "None", "saleOfBusiness": "Sale covenants get lower scrutiny than employment covenants", "customerNonSolicit": "Patient/customer non-solicits preserved for physicians", "employeeNonSolicit": "Employee non-solicits preserved for physicians" }, "about": [ "West Virginia non-compete agreements", "W. Va. Code 47-11E Physicians Freedom of Practice Act", "Reddy v. Community Health Foundation reasonableness test", "West Virginia anti-blue-pencil rule", "West Virginia customer non-solicitation non-piracy", "West Virginia sale-of-business covenants", "West Virginia restrictive covenant consideration" ], "translations": [ { "language": "中文", "status": "planned" } ], "relatedForm": { "slug": "openagreements-restrictive-covenant-west-virginia" } }, "questions": [ { "slug": "employee-non-compete-enforceability", "label": "Are employee non-competes enforceable?", "heading": "Are employee non-compete agreements enforceable in West Virginia?", "answerText": "Sometimes. West Virginia does not ban ordinary employee non-competes, but the employer must satisfy Reddy by showing a legitimate protectable interest and a restraint that is no greater than needed, does not impose undue hardship, and is not injurious to the public.", "sources": [ { "id": "reddy-employee-rule-of-reason", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=The%20three%2Ddimensional%20method%20of%20inquiry,to%20Compete%2C%E2%80%9D%20supra%2C%20at%20648.", "proposition": "Reddy supports West Virginia's three-part reasonableness test for employee non-competes.", "verbatimQuote": "The three-dimensional method of inquiry has been summarized in a leading article: “A restraint is reasonable only if it (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,” H.M. Blake, “Employee Agreements Not to Compete,” supra, at 648.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-employee-rule-of-reason" }, { "id": "reddy-employer-burden", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=The%20employer%20must%20first%20show,has%20an%20interest%20requiring%20protection.", "proposition": "Reddy supports the employer's burden to prove a legitimate interest requiring protection before a facially reasonable covenant becomes presumptively enforceable.", "verbatimQuote": "The employer must first show that he has an interest requiring protection.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-employer-burden" }, { "id": "helms-general-managerial-skills", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Helms Boys, Inc. v. Brady", "citation": "Helms Boys, Inc. v. Brady, 171 W. Va. 66, 297 S.E.2d 840 (1982).", "url": "https://www.courtlistener.com/opinion/1356394/helms-boys-inc-v-brady/", "deepLink": "https://www.courtlistener.com/opinion/1356394/helms-boys-inc-v-brady/#:~:text=When%20the%20skills%20and%20information,are%20not%20protectible%20employer%20interests.", "proposition": "Helms Boys supports the rule that general managerial skills and information are not protectable employer interests for a West Virginia employment covenant.", "verbatimQuote": "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 are not protectible employer interests.", "date": "1982-11-18", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-helms-general-managerial-skills" }, { "id": "voorhees-no-protectable-interest", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Voorhees v. Guyan Machinery Co.", "citation": "Voorhees v. Guyan Mach. Co., 191 W. Va. 450, 446 S.E.2d 672 (1994).", "url": "https://www.courtlistener.com/opinion/1347675/voorhees-v-guyan-machinery-co/", "deepLink": "https://www.courtlistener.com/opinion/1347675/voorhees-v-guyan-machinery-co/#:~:text=In%20such%20circumstances%2C%20any%20information,protection%20by%20the%20restrictive%20covenant.", "proposition": "Voorhees supports the protectable-interest gatekeeping rule by rejecting enforcement where alleged confidential customer and pricing information was not protectable.", "verbatimQuote": "In such circumstances, any information to which Mr. Voorhees was privy as a result of his position at Guyan Machinery was not subject to protection by the restrictive covenant.", "date": "1994-03-24", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-voorhees-no-protectable-interest" }, { "id": "special-services-protectable-interest-gate", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Special Services Bureau, Inc. v. Friend", "citation": "Special Servs. Bureau, Inc. v. Friend, No. 18-0478 (W. Va. Sept. 9, 2019) (mem. decision).", "url": "https://www.courtlistener.com/opinion/4659311/special-services-bureau-inc-v-stacey-elizabeth-friend/", "deepLink": "https://www.courtlistener.com/opinion/4659311/special-services-bureau-inc-v-stacey-elizabeth-friend/#:~:text=The%20circuit%20court%E2%80%99s%20consideration%20of,covenant%20failed%20on%20other%20grounds.", "proposition": "Special Services Bureau supports the rule that a court need not reach facial reasonableness when the employer has no protectable interest.", "verbatimQuote": "The circuit court’s consideration of the reasonableness of the covenant was not necessary after the court found that the covenant failed on other grounds.", "date": "2019-09-09", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-special-services-protectable-interest-gate" } ] }, { "slug": "court-narrowing", "label": "Will courts narrow an overbroad covenant?", "heading": "Will West Virginia courts narrow an overbroad non-compete?", "answerText": "Only after the covenant passes the first screen. West Virginia's signature trap is that a covenant unreasonable on its face is void, and the court will not rescue it by rewriting or partially enforcing it.", "sources": [ { "id": "reddy-facially-unreasonable-void", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=If%20the%20covenant%20is%20unreasonable,is%20utterly%20void%20and%20unenforceable.", "proposition": "Reddy supports West Virginia's rule that a covenant unreasonable on its face is void and unenforceable.", "verbatimQuote": "If the covenant is unreasonable on its face, then it is utterly void and unenforceable.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-facially-unreasonable-void" }, { "id": "huntington-eye-no-partial-enforcement", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Huntington Eye Associates, Inc. v. LoCascio", "citation": "Huntington Eye Assocs., Inc. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001).", "url": "https://www.courtlistener.com/opinion/1298767/huntington-eye-associates-inc-v-locascio/", "deepLink": "https://www.courtlistener.com/opinion/1298767/huntington-eye-associates-inc-v-locascio/#:~:text=An%20employee%20covenant%20not%20to,restrictive%20covenants%20are%20naturally%20prone.", "proposition": "Huntington Eye restates the West Virginia rule that a facially unreasonable employee covenant is void and should not receive even partial enforcement.", "verbatimQuote": "An employee covenant not to compete is unreasonable on its face if its time or area limitations are excessively broad, or where the covenant appears designed to intimidate employees rather than to protect the employer’s business, and a court should hold any such covenant void and unenforceable, and not undertake even a partial enforcement of it, bearing in mind, however, that a standard of “unreasonable on its face” is to be distinguished from the standard of “reasonableness” used in inquiries adopted by other authorities to address the minor instances of overbreadth to which restrictive covenants are naturally prone.", "date": "2001-07-06", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-huntington-eye-no-partial-enforcement" } ] }, { "slug": "mid-employment-consideration", "label": "Does consideration matter?", "heading": "Does a West Virginia non-compete signed after employment starts need new consideration?", "answerText": "Yes. If employment began without a non-compete, a later covenant needs new, independent consideration; continued at-will employment alone is not enough under West Virginia law.", "sources": [ { "id": "environmental-products-new-consideration", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Environmental Products Co. v. Duncan", "citation": "Env't Prods. Co. v. Duncan, 168 W. Va. 349, 285 S.E.2d 889 (1981).", "url": "https://www.courtlistener.com/opinion/8217635/environmental-products-co-v-duncan/", "deepLink": "https://www.courtlistener.com/opinion/8217635/environmental-products-co-v-duncan/#:~:text=If%20a%20covenant%20not%20to,new%20consideration%20to%20support%20it.", "proposition": "Environmental Products supports the West Virginia rule that a post-commencement non-compete needs new consideration.", "verbatimQuote": "If a covenant not to compete is contracted after employment has been commenced without restriction, there must be new consideration to support it.", "date": "1981-12-02", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-environmental-products-new-consideration" }, { "id": "environmental-products-only-limitations", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Environmental Products Co. v. Duncan", "citation": "Env't Prods. Co. v. Duncan, 168 W. Va. 349, 285 S.E.2d 889 (1981).", "url": "https://www.courtlistener.com/opinion/8217635/environmental-products-co-v-duncan/", "deepLink": "https://www.courtlistener.com/opinion/8217635/environmental-products-co-v-duncan/#:~:text=His%20contract%2C%20therefore%2C%20did%20not,employment%3B%20it%20only%20imposed%20limitations.", "proposition": "Environmental Products supports the conclusion that a mid-employment covenant is void when it adds only limitations and does not alter benefits, conditions, or terms.", "verbatimQuote": "His contract, therefore, did not alter any benefits, conditions or terms of employment; it only imposed limitations.", "date": "1981-12-02", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-environmental-products-only-limitations" }, { "id": "pemco-new-contract-new-consideration", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Pemco Corp. v. Rose", "citation": "Pemco Corp. v. Rose, 163 W. Va. 420, 257 S.E.2d 885 (1979).", "url": "https://www.courtlistener.com/opinion/8217515/pemco-corp-v-rose/", "deepLink": "https://www.courtlistener.com/opinion/8217515/pemco-corp-v-rose/#:~:text=We%20believe%20Virginia%E2%80%99s%20highest%20court,based%20upon%20a%20new%20consideration.", "proposition": "Pemco supports the rule that a later non-compete must be a new contract based on new consideration once employment has already been established without a restrictive covenant.", "verbatimQuote": "We believe Virginia’s highest court would probably follow the holding in Kistler that when the relationship of employer and employee is established without a restrictive covenant not to compete, any agreement thereafter not to compete, must be in the nature of a new contract based upon a new consideration.", "date": "1979-07-16", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-pemco-new-contract-new-consideration" } ] }, { "slug": "customer-nonsolicits", "label": "Are customer non-solicits enforceable?", "heading": "Are customer non-solicitation clauses enforceable in West Virginia?", "answerText": "Yes, if they are true non-piracy provisions and not disguised non-competes. Wood v. Acordia treats customer non-solicits as less restrictive than non-competes because they restrict solicitation or use of confidential information while allowing general competition.", "sources": [ { "id": "wood-nonpiracy-definition", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Wood v. Acordia of West Virginia, Inc.", "citation": "Wood v. Acordia of W. Va., Inc., 217 W. Va. 406, 618 S.E.2d 415 (2005).", "url": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/", "deepLink": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/#:~:text=Accordingly%2C%20this%20Court%20holds%20that,of%20the%20employer's%20confidential%20information.", "proposition": "Wood supports the distinction between non-competes and non-piracy provisions in West Virginia.", "verbatimQuote": "Accordingly, this Court holds that whereas a covenant not to compete in an employment agreement between an employer and an employee restricts the employee from engaging in business similar to that of the employer within a designated time and territory after the employment should cease, a non-piracy provision, also known as a non-solicitation or hands-off provision, in an employment agreement, restricts the employee, should the employment cease, from soliciting the employer's customers or making use of the employer's confidential information.", "date": "2005-07-07", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wood-nonpiracy-definition" }, { "id": "wood-no-territorial-limits", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Wood v. Acordia of West Virginia, Inc.", "citation": "Wood v. Acordia of W. Va., Inc., 217 W. Va. 406, 618 S.E.2d 415 (2005).", "url": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/", "deepLink": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/#:~:text=Although%20both%20covenants%20not%20to,economic%20forces%20of%20the%20marketplace.", "proposition": "Wood supports the rule that West Virginia non-piracy provisions ordinarily do not include territorial limits and are less restrictive than non-competes.", "verbatimQuote": "Although both covenants not to compete and non-piracy provisions are utilized to safeguard an employer's protectable business interests, non-piracy provisions, which ordinarily do not include territorial limits, are less restrictive on the employee and the economic forces of the marketplace.", "date": "2005-07-07", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wood-no-territorial-limits" }, { "id": "wood-three-factor-test", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Wood v. Acordia of West Virginia, Inc.", "citation": "Wood v. Acordia of W. Va., Inc., 217 W. Va. 406, 618 S.E.2d 415 (2005).", "url": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/", "deepLink": "https://www.courtlistener.com/opinion/1289040/wood-v-acordia-of-west-virginia-inc/#:~:text=In%20addition%2C%20we%20hold%20that,or%20she%20seeks%20to%20pursue.", "proposition": "Wood supports the three-factor validity test and burden allocation for West Virginia non-piracy provisions.", "verbatimQuote": "In addition, we hold that although a non-piracy provision in an employment agreement may appear reasonable on its face when viewed within the four corners of the agreement, the ultimate validity of such a provision is dependent upon: (1) whether the employer has a protectable business interest to be safeguarded in relation to the employee, (2) the extent to which the non-piracy provision reasonably and fairly protects that interest and (3) whether the non-piracy provision unjustly restricts the employee from engaging in the business activity he or she seeks to pursue.", "date": "2005-07-07", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wood-three-factor-test" } ] }, { "slug": "extended-for-breach", "label": "Does the restricted period toll?", "heading": "Does the restricted period toll or extend during a breach or lawsuit in West Virginia?", "answerText": "This is an open West Virginia question. The staged West Virginia appellate corpus does not contain a decision squarely deciding whether a court may extend a non-compete period for time spent in breach or litigation, or whether an extension-on-breach clause is enforceable.", "sources": [ { "id": "reddy-tolling-facially-unreasonable", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=If%20the%20covenant%20is%20unreasonable,is%20utterly%20void%20and%20unenforceable.", "proposition": "Reddy supports the tolling caution by holding that a facially unreasonable covenant is void and unenforceable rather than judicially rescued.", "verbatimQuote": "If the covenant is unreasonable on its face, then it is utterly void and unenforceable.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-tolling-facially-unreasonable" }, { "id": "huntington-eye-tolling-no-partial-enforcement", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Huntington Eye Associates, Inc. v. LoCascio", "citation": "Huntington Eye Assocs., Inc. v. LoCascio, 210 W. Va. 76, 553 S.E.2d 773 (2001).", "url": "https://www.courtlistener.com/opinion/1298767/huntington-eye-associates-inc-v-locascio/", "deepLink": "https://www.courtlistener.com/opinion/1298767/huntington-eye-associates-inc-v-locascio/#:~:text=An%20employee%20covenant%20not%20to,restrictive%20covenants%20are%20naturally%20prone.", "proposition": "Huntington Eye supports the tolling caution by restating that a facially unreasonable employee covenant should not receive even partial enforcement.", "verbatimQuote": "An employee covenant not to compete is unreasonable on its face if its time or area limitations are excessively broad, or where the covenant appears designed to intimidate employees rather than to protect the employer’s business, and a court should hold any such covenant void and unenforceable, and not undertake even a partial enforcement of it, bearing in mind, however, that a standard of “unreasonable on its face” is to be distinguished from the standard of “reasonableness” used in inquiries adopted by other authorities to address the minor instances of overbreadth to which restrictive covenants are naturally prone.", "date": "2001-07-06", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-huntington-eye-tolling-no-partial-enforcement" }, { "id": "reddy-tolling-reasonableness-test", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=The%20three%2Ddimensional%20method%20of%20inquiry,to%20Compete%2C%E2%80%9D%20supra%2C%20at%20648.", "proposition": "Reddy supports treating any extension-on-breach clause as part of the restraint that must satisfy the three-part reasonableness test.", "verbatimQuote": "The three-dimensional method of inquiry has been summarized in a leading article: “A restraint is reasonable only if it (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,” H.M. Blake, “Employee Agreements Not to Compete,” supra, at 648.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-tolling-reasonableness-test" } ] }, { "slug": "physician-rules", "label": "What rules apply to physicians?", "heading": "What non-compete rules apply to West Virginia physicians?", "answerText": "West Virginia has a physician-specific statute. A physician employment non-compete is capped at one year and thirty road miles from the physician's primary practice location, and it is void and unenforceable if the employer terminates the physician's employment.", "sources": [ { "id": "wv-47-11e-2-physician-limits", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-2", "citation": "W. Va. Code § 47-11E-2.", "url": "https://code.wvlegislature.gov/47-11E-2/", "proposition": "W. Va. Code § 47-11E-2 supports the one-year and thirty-road-mile cap for physician employment non-competes.", "verbatimQuote": "A covenant not to compete contained in a contract between a physician and an employer shall be limited to not more than: (1) One year in duration; and (2) Thirty road miles from the physician’s primary place of practice with the employer.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-2-physician-limits" }, { "id": "wv-47-11e-2-employer-termination", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-2", "citation": "W. Va. Code § 47-11E-2.", "url": "https://code.wvlegislature.gov/47-11E-2/", "proposition": "W. Va. Code § 47-11E-2 supports the rule that a physician non-compete is void and unenforceable upon employer termination.", "verbatimQuote": "A covenant not to compete shall be void and unenforceable upon the termination of the physician’s employment by the employer.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-2-employer-termination" }, { "id": "wv-47-11e-5-applicability", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-5", "citation": "W. Va. Code § 47-11E-5.", "url": "https://code.wvlegislature.gov/47-11E-5/", "proposition": "W. Va. Code § 47-11E-5 supports the July 1, 2017 applicability rule for the physician article.", "verbatimQuote": "This article applies to any contract between a physician and his or her employer entered into, modified, renewed or extended on or after July 1, 2017: Provided, That the provisions of this article do not otherwise apply to or abrogate any contract in effect on or before June 30, 2017.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-5-applicability" }, { "id": "wv-47-11e-1-definitions", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-1", "citation": "W. Va. Code § 47-11E-1.", "url": "https://code.wvlegislature.gov/47-11E-1/", "proposition": "W. Va. Code § 47-11E-1 supports the physician article's statutory definition of a covenant not to compete.", "verbatimQuote": "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.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-1-definitions" }, { "id": "wv-47-11e-3-preserved-provisions", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-3", "citation": "W. Va. Code § 47-11E-3.", "url": "https://code.wvlegislature.gov/47-11E-3/", "proposition": "W. Va. Code § 47-11E-3 supports the enforceability of preserved physician-contract provisions including NDAs, non-solicits, repayment terms, and liquidated damages.", "verbatimQuote": "Provided that the contract does not state otherwise, nothing in this article limits the enforceability of: (1) Provisions prohibiting a physician from taking any property, patient lists or records of the employer with him or her upon the termination or expiration of the contract; (2) Provisions requiring a physician to repay an employer all or a portion of: (A) A loan; (B) Relocation expenses; (C) A signing bonus; (D) Remuneration to induce the physician to relocate or establish a physician practice in a specific geographic area; or (E) Recruiting, education and training expenses; (3) A nondisclosure provision relating to confidential information and trade secrets; (4) A nonsolicitation provision with respect to patients and employees of the employer; (5) A provision for liquidated damages; or (6) Any other provision of a contract that is not in violation of law.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-3-preserved-provisions" }, { "id": "wv-47-11e-4-exemptions", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-4", "citation": "W. Va. Code § 47-11E-4.", "url": "https://code.wvlegislature.gov/47-11E-4/", "proposition": "W. Va. Code § 47-11E-4 supports the sale-of-practice and physician-owner exemptions from the physician article limits.", "verbatimQuote": "The limitations set forth in this article do not apply to any of the following unless the contract terms provide otherwise: (1) In the case where the physician has sold his or her business or practice in the form of a sale of assets, stock, membership interests or otherwise to his or her employer; or (2) To contracts between physicians who are shareholders, owners, partners, members or directors of a health care practice.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-4-exemptions" } ] }, { "slug": "sale-of-business", "label": "What about sale-of-business covenants?", "heading": "Are sale-of-business non-competes treated differently in West Virginia?", "answerText": "Yes. West Virginia applies reasonableness review to sale-of-business covenants, but with less scrutiny than employment covenants because the buyer is purchasing goodwill and the seller receives transaction value for the restraint.", "sources": [ { "id": "weaver-affirmed-injunction", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Weaver v. Ritchie", "citation": "Weaver v. Ritchie, 197 W. Va. 690, 478 S.E.2d 363 (1996).", "url": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/", "deepLink": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/#:~:text=After%20a%20bench%20trial%20of,of%20the%20sale.%20We%20affirm.", "proposition": "Weaver affirmed a permanent injunction enforcing a fifteen-year, fifty-mile covenant ancillary to the sale of an optometric practice.", "verbatimQuote": "After a bench trial of several days, the trial court made findings of fact and conclusions of law holding that the covenant was valid and enforceable and entered a permanent injunction enjoining the appellant from practicing optometry within an area measured by a radius of fifty (50) miles from Vienna, West Virginia, and for a period of fifteen (15) years after the date of the sale. We affirm.", "date": "1996-10-16", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-weaver-affirmed-injunction" }, { "id": "weaver-lesser-scrutiny-sale", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Weaver v. Ritchie", "citation": "Weaver v. Ritchie, 197 W. Va. 690, 478 S.E.2d 363 (1996).", "url": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/", "deepLink": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/#:~:text=Because%20the%20motivation%20and%20purpose,ancillary%20to%20an%20employment%20agreement.", "proposition": "Weaver supports less stringent reasonableness review for non-competes ancillary to a sale of a business than for employment covenants.", "verbatimQuote": "Because the motivation and purpose of the restrictive covenant embraced in a sales agreement are substantially different from a covenant in an employment agreement, the rule of reason is applied with a lesser scrutiny in a sales contract than the covenant ancillary to an employment agreement.", "date": "1996-10-16", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-weaver-lesser-scrutiny-sale" }, { "id": "weaver-sale-three-part-test", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Weaver v. Ritchie", "citation": "Weaver v. Ritchie, 197 W. Va. 690, 478 S.E.2d 363 (1996).", "url": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/", "deepLink": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/#:~:text=To%20determine%20if%20a%20covenant,not%20injurious%20to%20the%20public.", "proposition": "Weaver supports West Virginia's three-part reasonableness test for covenants ancillary to a sale of a business.", "verbatimQuote": "To determine if a covenant not to compete ancillary to a sale of a business is reasonable we use a three-part inquiry: A covenant not to compete is reasonable only if it (1) is no greater than is required for the protection of the buyer; (2) does not impose an undue hardship upon the seller, and (3) is not injurious to the public.", "date": "1996-10-16", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-weaver-sale-three-part-test" }, { "id": "weaver-sale-policy", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Weaver v. Ritchie", "citation": "Weaver v. Ritchie, 197 W. Va. 690, 478 S.E.2d 363 (1996).", "url": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/", "deepLink": "https://www.courtlistener.com/opinion/1328666/weaver-v-ritchie/#:~:text=A%20restriction%20imposed%20upon%20the,at%20the%20highest%20possible%20price.", "proposition": "Weaver supports the policy distinction between sale covenants that transfer goodwill value and employment covenants that restrain a worker's post-employment labor.", "verbatimQuote": "A restriction imposed upon the seller of a business affords a person the freedom to sell something that has been acquired by virtue of their labor, skill or talent at the highest possible price.", "date": "1996-10-16", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-weaver-sale-policy" } ] }, { "slug": "low-wage-workers", "label": "Are low-wage workers protected?", "heading": "Are low-wage workers protected from non-competes in West Virginia?", "answerText": "There is no enacted West Virginia wage-threshold ban in the staged corpus. Low-wage protection instead comes through Reddy's undue-hardship and public-interest prongs, plus the employer's burden to prove a legitimate protectable interest.", "sources": [ { "id": "reddy-low-wage-undue-hardship", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=The%20three%2Ddimensional%20method%20of%20inquiry,to%20Compete%2C%E2%80%9D%20supra%2C%20at%20648.", "proposition": "Reddy supports using undue hardship and public injury as common-law protection where no wage-threshold statute applies.", "verbatimQuote": "The three-dimensional method of inquiry has been summarized in a leading article: “A restraint is reasonable only if it (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,” H.M. Blake, “Employee Agreements Not to Compete,” supra, at 648.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-low-wage-undue-hardship" }, { "id": "helms-low-wage-general-skills", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Helms Boys, Inc. v. Brady", "citation": "Helms Boys, Inc. v. Brady, 171 W. Va. 66, 297 S.E.2d 840 (1982).", "url": "https://www.courtlistener.com/opinion/1356394/helms-boys-inc-v-brady/", "deepLink": "https://www.courtlistener.com/opinion/1356394/helms-boys-inc-v-brady/#:~:text=When%20the%20skills%20and%20information,are%20not%20protectible%20employer%20interests.", "proposition": "Helms Boys supports the point that ordinary job skills are not protectable interests, a key common-law limit for lower-wage or general-skill workers.", "verbatimQuote": "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 are not protectible employer interests.", "date": "1982-11-18", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-helms-low-wage-general-skills" } ] }, { "slug": "trade-secrets-ndas", "label": "Are trade-secret and NDA tools available?", "heading": "Are trade-secret, NDA, and confidentiality tools available in West Virginia?", "answerText": "Yes. West Virginia's Uniform Trade Secrets Act provides trade-secret remedies, allows attorney's fees in specified bad-faith or willful-malicious cases, and preserves contractual remedies while displacing conflicting tort, restitutionary, and other civil law for trade-secret misappropriation.", "sources": [ { "id": "wv-47-22-4-attorney-fees", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-22-4", "citation": "W. Va. Code § 47-22-4.", "url": "https://code.wvlegislature.gov/47-22-4/", "proposition": "W. Va. Code § 47-22-4 supports attorney's-fee awards in specified West Virginia trade-secret cases.", "verbatimQuote": "If (a) a claim of misappropriation is made in bad faith, or (b) a motion to terminate an injunction is made or resisted in bad faith, or (c) willful and malicious misappropriation occurs, the court may award reasonable attorney's fees to the prevailing party.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-22-4-attorney-fees" }, { "id": "wv-47-22-7-preserved-contract-remedies", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-22-7", "citation": "W. Va. Code § 47-22-7.", "url": "https://code.wvlegislature.gov/47-22-7/", "proposition": "W. Va. Code § 47-22-7 supports UTSA displacement of conflicting civil trade-secret remedies while preserving contractual remedies.", "verbatimQuote": "Except as provided in subsection (b), of this section, this article displaces conflicting tort, restitutionary and other law of this state providing civil remedies for misappropriation of a trade secret. (b) This article does not affect: (1) Contractual remedies, whether or not based upon misappropriation of a trade secret; (2) Other civil remedies that are not based upon misappropriation of a trade secret; or (3) Criminal remedies, whether or not based upon misappropriation of a trade secret.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-22-7-preserved-contract-remedies" }, { "id": "wv-47-11e-3-nda-nonsolicit-preserved", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "W. Va. Code § 47-11E-3", "citation": "W. Va. Code § 47-11E-3.", "url": "https://code.wvlegislature.gov/47-11E-3/", "proposition": "W. Va. Code § 47-11E-3 supports preserved physician-contract alternatives including NDAs and non-solicits.", "verbatimQuote": "Provided that the contract does not state otherwise, nothing in this article limits the enforceability of: (1) Provisions prohibiting a physician from taking any property, patient lists or records of the employer with him or her upon the termination or expiration of the contract; (2) Provisions requiring a physician to repay an employer all or a portion of: (A) A loan; (B) Relocation expenses; (C) A signing bonus; (D) Remuneration to induce the physician to relocate or establish a physician practice in a specific geographic area; or (E) Recruiting, education and training expenses; (3) A nondisclosure provision relating to confidential information and trade secrets; (4) A nonsolicitation provision with respect to patients and employees of the employer; (5) A provision for liquidated damages; or (6) Any other provision of a contract that is not in violation of law.", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-wv-47-11e-3-nda-nonsolicit-preserved" }, { "id": "reddy-trade-secrets-customer-lists", "authorityType": "case-law", "tier": "primary-source-backed", "title": "Reddy v. Community Health Foundation of Man", "citation": "Reddy v. Cmty. Health Found. of Man, 171 W. Va. 368, 298 S.E.2d 906 (1982).", "url": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/", "deepLink": "https://www.courtlistener.com/opinion/1309110/reddy-v-community-health-foundation-of-man/#:~:text=Trade%20secrets%20are%20very%20unlikely,to%20permit%20their%20competitive%20use.", "proposition": "Reddy supports trade secrets and customer lists as employer assets that courts are reluctant to let former employees use competitively without restriction.", "verbatimQuote": "Trade secrets are very unlikely to have been paid for, and this is reflected by the reluctance of courts to permit their use by former employees in the competitive market. Customer lists, too, are seldom paid for, and courts are therefore reluctant to permit their competitive use.", "date": "1982-12-15", "anchor": "https://openagreements.org/practice-guides/non-compete/us/west-virginia#src-reddy-trade-secrets-customer-lists" } ] } ] } }