As a reminder for all employers in Virginia, a recent Court of Appeals decision clarifies that certain non‑solicitation provisions may be treated as prohibited non‑compete agreements for covered workers.

On January 27, 2026, the Court of Appeals of Virginia ruled in Sentry Force Security, LLC v. Barrera that employee non‑solicitation provisions can function as unlawful covenants not to compete when applied to workers covered by Virginia’s low‑wage non‑compete statute. In contrast, customer non‑solicitation provisions remain permissible—but only when narrowly limited to restricting the former employee from initiating contact or solicitation (the employee may still serve customers who reach out on their own). 

This update applies to employers making hiring and restrictive‑covenant decisions in Virginia, ruling affecting low‑wage and Fair Labor Standards Act (FLSA) non‑exempt employees, and reflects the Court of Appeals’ January 27, 2026, ruling.

What Employers Need to Do

• Identify Low‑wage/FLSA Non‑exempt Employees: Use the Average Weekly Wage (AWW) threshold ($1,507.01/week in 2026) and apply the commission/ bonus/incentive exclusion.

• Audit Agreements: Revise any non‑compete and non‑solicitation clauses for low‑wage/non‑exempt employees in offer letters, employment agreements, and Restrictive Covenant Agreements (RCAs).

• Remove/Replace Infringing Covenants: Consider not including employee non‑solicitation for covered workers. If using a customer non‑solicitation, narrowly tailor it to initiation/solicitation only.

• Update Policies and Train: Consider refreshing templates, playbooks, and HR/Legal training to align with the ruling and statutory carve‑outs.
• Stop Unlawful Enforcement: Do not threaten, attempt, or enforce banned non‑competes or employee non‑solicits against low‑wage/non‑exempt employees; the statute provides private suits, fees, and civil penalties.

Overview

• The Virginia Court of Appeals (in Sentry Force Security, LLC v. Barrera, January 27, 2026) held that Virginia’s low‑wage non‑compete statute can cover certain non‑solicitation clauses.

• Ruling: Employee non‑solicitation covenants can be treated as prohibited “covenants not to compete” for low‑wage/FLSA non‑exempt employees, while customer non‑solicitation covenants are allowed if limited to barring outbound initiation/solicitation; the former employee may still service a customer who initiates contact.

Who is Covered

• “Low‑wage” Employees: those earning below Virginia’s average weekly wage (AWW)—$1,507.01/week in 2026 (approximately $78,364.52/year)—and, after a 2025 amendment, any FLSA non‑exempt employee (regardless of pay).

• Exclusion: Employees whose earnings are predominantly commissions, incentives, or bonuses are not “low‑wage” under the statute.

Court Takeaways

• Customer Non‑solicitation — ALLOWED (even for low‑wage): Enforceable when it only restricts outbound solicitation/initiating contact and does not bar the former employee from providing services to a customer who reaches out on their own.

• Employee Non‑solicitation — PROHIBITED (for Low‑wage/FLSA Non‑exempt): Treated as a covenant not to compete and therefore unenforceable against covered workers.

Why this matters

• This departs from the common view in many states that non‑solicitation agreements are not the same as non‑compete agreements; Virginia now treats employee non‑solicits for covered workers as non‑competes.

• Even recently updated templates may now be non‑compliant in Virginia, creating risk if employers enter into, threaten to enforce, or enforce prohibited covenants under Va. Code § 40.1‑28.7:8.

Key Risks for Employers

• Using or Enforcing Employee Non-solicitation Clauses for Covered Workers: Virginia courts may treat employee non-solicits as prohibited non-competes for low-wage and FLSA nonexempt employees, making them unenforceable and exposing employers to claims.

• Overbroad Customer Non-solicitation Drafting: Customer non-solicits remain permissible only if narrowly limited to outbound initiation/solicitation; clauses that effectively bar servicing customers who initiate contact can increase enforceability risk.

• Misidentifying Who is “Covered”: Errors applying the AWW threshold and the statute’s FLSA nonexempt coverage, or misapplying the commissions/bonus/incentive exclusion, can lead to unlawful restrictive covenants being used with protected workers.

• Threatening to Enforce Prohibited Restrictions: Even threats or attempts to enforce banned non-competes/employee non-solicits can trigger statutory exposure, including fee-shifting and potential penalties.

• Legacy Template and Agreement Contamination: Offer letters, employment agreements, and restrictive covenant templates with problematic language; failing to update them can create repeat compliance failures across hires.

• Cost Exposure from Fee Awards and Litigation Posture: The decision reflects that unlawful enforcement attempts can result in attorneys’ fees and costs awards, increasing litigation cost risk.

Source Reference

• Virginia – Sentry Force Security, LLC v. Barrera

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.