Virginia Non-Disclosure Agreement (NDA) Review
Virginia has narrowed confidentiality and restrictive covenants in steps. Since 2019 an employer cannot require silence about sexual assault claims as a condition of employment, and in 2023 that rule was extended to sexual harassment. Non-competes have been barred for low-wage workers since 2020, and from July 1, 2025 that ban also covers employees who are non-exempt under federal overtime law. A Virginia NDA should be read against all three rules.
Trade-secret law
Uniform Trade Secrets Act
Bundled non-compete
Limited
Confidentiality & trade secrets in Virginia
Virginia protects trade secrets under its version of the Uniform Trade Secrets Act, and the federal Defend Trade Secrets Act applies on top. A reasonable NDA is enforceable, but courts still look at scope, an over-broad definition of "confidential information" with no exclusions is the most common weakness.
Watch for a non-compete inside the NDA
Banned for FLSA non-exempt (overtime-eligible) employees since July 1, 2025, except those paid mainly through sales commissions, incentives or bonuses, and for exempt employees earning below the state average weekly wage, about $78,365 a year in 2026. For agreements made from July 1, 2026, it is unenforceable against an employee fired without cause unless severance disclosed at signing is paid, and new agreements with health care professionals are banned.
A confidentiality agreement should protect information, not restrict who you can work for. If an NDA in Virginia also tries to bar you from competitors or from soliciting contacts, treat that as a separate restrictive covenant and judge it by Virginia's non-compete rules above.
What does Va. Code 40.1-28.01 prohibit?
No employer may require an employee or prospective employee to sign or renew a nondisclosure or confidentiality provision, including a nondisparagement provision, that has the purpose or effect of concealing details of a sexual assault or sexual harassment claim, as a condition of employment. Any such provision is against public policy, void and unenforceable. HB 1895 added sexual harassment effective July 1, 2023.
Because the statute focuses on conditions of employment, commentators generally read it as leaving separation and settlement agreements outside its reach.
How do Virginia's non-compete and trade secret laws apply?
Va. Code 40.1-28.7:8 bars non-competes with low-wage employees, defined by reference to the Commonwealth's average weekly wage. SB 1218 expanded that definition, for agreements entered into on or after July 1, 2025, to include employees entitled to overtime under the federal Fair Labor Standards Act, whatever they earn. A covered worker can sue an employer that tries to enforce one.
The Virginia Uniform Trade Secrets Act, Va. Code 59.1-336 to 59.1-343, protects information with value from secrecy and governs the confidentiality clause itself.
If a Virginia NDA was signed before July 1, 2025, the older low-wage definition applies to any non-compete inside it, so the date of signing matters a great deal when assessing an existing agreement.
Virginia sources checked 2026-10-09: Va. Code 40.1-28.01 (Virginia LIS) · Reed Smith: Virginia expands non-compete restrictions to non-exempt employees · Speak Out Act, Pub. L. 117-224 (congress.gov). Laws change; confirm the current rule before relying on it.
What ClauseAudit checks in a Virginia NDA
- Definition of "confidential information", narrow, or everything?
- The four standard exclusions (public, already known, independently developed, third-party)
- Duration, a defined term, or a perpetual obligation?
- A "residuals" clause allowing use of what is remembered
- Any bundled non-compete or non-solicitation, judged by Virginia law
- Return/destruction obligation and one-sided injunctive relief
Virginia NDA FAQ
Is an NDA enforceable in Virginia?
Yes, a reasonable confidentiality agreement is generally enforceable in Virginia, backed by the state’s Uniform Trade Secrets Act and, at the federal level, the Defend Trade Secrets Act. What matters is scope: an NDA with an over-broad definition of "confidential information," no standard exclusions, or a perpetual term is far weaker than it looks and worth narrowing.
Can an NDA include a non-compete in Virginia?
NDAs sometimes bundle in non-compete language. In Virginia, non-competes are enforceable only in limited cases, Banned for FLSA non-exempt (overtime-eligible) employees since July 1, 2025, except those paid mainly through sales commissions, incentives or bonuses, and for exempt employees earning below the state average weekly wage, about $78,365 a year in 2026. For agreements made from July 1, 2026, it is unenforceable against an employee fired without cause unless severance disclosed at signing is paid, and new agreements with health care professionals are banned. Read the NDA for any such restriction and push to remove or narrow it.
What makes an NDA fair in Virginia?
A sound NDA defines confidential information narrowly, includes the standard exclusions (public information, what you already knew, what you independently develop, and what a third party gives you), has a defined term rather than a perpetual one, and does not include a broad "residuals" clause or a hidden non-compete. ClauseAudit checks each of these against Virginia law.
Can Virginia enforce a non-compete buried in an NDA?
Virginia is one of 13 jurisdictions allowing them only in restricted circumstances. Banned for FLSA non-exempt (overtime-eligible) employees since July 1, 2025, except those paid mainly through sales commissions, incentives or bonuses, and for exempt employees earning below the state average weekly wage, about $78,365 a year in 2026. For agreements made from July 1, 2026, it is unenforceable against an employee fired without cause unless severance disclosed at signing is paid, and new agreements with health care professionals are banned. Confidentiality obligations are a separate question and are not affected by any of that, which is why a restraint tucked into an NDA deserves reading on its own terms rather than as part of the secrecy clause.
If the restriction in my Virginia agreement is too broad, what happens?
An overbroad restriction is struck down in full, not narrowed. That works in your favour: an employer who overreaches risks losing the restriction altogether rather than having it trimmed, which is real leverage when you ask for it to be narrowed.
Does it matter which state's law the agreement names?
It can, because Virginia's neighbours do not all agree: Kentucky (generally enforceable), North Carolina (generally enforceable), West Virginia (generally enforceable). Which law applies turns on the governing-law and venue clauses and on where the work is actually done, so those two clauses are worth reading before signing an NDA.
I am a non-exempt hourly worker in Virginia. Can my NDA include a non-compete?
For agreements entered into on or after July 1, 2025, Virginia treats FLSA non-exempt employees as low-wage employees for non-compete purposes, so a non-compete cannot be enforced against them. The confidentiality obligations in your NDA can still apply to genuine trade secrets and confidential business information.
Does 40.1-28.01 stop my severance agreement including confidentiality?
Probably not. The statute bars requiring such terms as a condition of employment, and commentators read it as not reaching separation or settlement agreements. For clauses signed before any dispute, the federal Speak Out Act separately blocks enforcement in sexual assault and sexual harassment disputes.
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How neighbouring states treat restrictive covenants
Nationally: 4 jurisdictions treat employee non-competes as void, 13 allow them only in limited circumstances, 34 generally enforce them if reasonable.
Virginia rules summarized as of October 2026; laws change. This is automated educational information, not legal advice. ClauseAudit verifies current Virginia law when you run your NDA, and you should confirm anything critical with a qualified attorney.