PRESENT: All the Justices

HOME PARAMOUNT PEST CONTROL

COMPANIES, INC.

OPINION BY

v. Record No. 101837 JUSTICE WILLIAM C. MIMS

 November 4, 2011

JUSTIN SHAFFER, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Robert J. Smith, Judge

In this appeal, we consider whether a “non-compete”

provision in an employment agreement is overbroad and therefore 

unenforceable.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Justin Shaffer was an employee of Home Paramount Pest 

Control Companies, Inc. (“Home Paramount”). In January 2009, he 

signed an employment agreement containing the following

provision (“the Provision”):

The Employee will not engage directly or 

indirectly or concern himself/herself in any 

manner whatsoever in the carrying on or 

conducting the business of exterminating, pest 

control, termite control and/or fumigation 

services as an owner, agent, servant, 

representative, or employee, and/or as a member 

of a partnership and/or as an officer, director 

or stockholder of any corporation, or in any 

manner whatsoever, in any city, cities, county or 

counties in the state(s) in which the Employee 

works and/or in which the Employee was assigned 

during the two (2) years next preceding the 

termination of the Employment Agreement and for a 

period of two (2) years from and after the date 

upon which he/she shall cease for any reason 

whatsoever to be an employee of [Home Paramount].
2

In July 2009, Shaffer resigned from Home Paramount. Soon 

thereafter and within the two-year period set forth in the 

Provision, he became employed by Connor’s Termite and Pest 

Control, Inc. (“Connor’s”).

In September 2009, Home Paramount filed an amended verified 

complaint asserting that Shaffer’s employment by Connor’s 

violated the Provision and alleging, among other things, breach 

of contract by Shaffer and tortious interference with contract 

by Connor’s. The defendants filed a plea in bar to these 

claims, asserting that the Provision is overbroad and therefore 

unenforceable. After an evidentiary hearing, the circuit court 

granted the plea in bar and dismissed the relevant counts of the 

amended complaint. The remaining counts then were nonsuited and 

we awarded Home Paramount this appeal.1

II. ANALYSIS

The enforceability of a provision that restricts 

competition is a question of law that we review de novo. 

Omniplex World Servs. Corp. v. US Investigations Servs., Inc., 

270 Va. 246, 249, 618 S.E.2d 340, 342 (2005). It is enforceable 

if it “is narrowly drawn to protect the employer’s legitimate 

business interest, is not unduly burdensome on the employee’s 

ability to earn a living, and is not against public policy.” Id. 

 1 The nonsuited claims are not within the scope of this 

appeal.
3

The employer bears the burden of proving each of these factors. 

Modern Env’ts, Inc. v. Stinnett, 263 Va. 491, 493, 561 S.E.2d 

694, 695 (2002). When evaluating whether the employer has met 

that burden, we consider the “function, geographic scope, and 

duration” elements of the restriction. Simmons v. Miller, 261 

Va. 561, 581, 544 S.E.2d 666, 678 (2001). These elements are 

“considered together” rather than “as three separate and 

distinct issues.” Id.

Home Paramount asserts that the circuit court erred by 

focusing on the language of the Provision prohibiting Shaffer

from “engag[ing] indirectly or concern[ing] himself . . . in any 

manner whatsoever” in pest control “as an owner, agent, servant, 

representative, or employee, and/or as a member of a partnership 

and/or as an officer, director or stockholder of any 

corporation, or in any manner whatsoever.” By doing so, Home 

Paramount argues, the court took those words out of context and 

gave undue weight to the function element of the enforceability 

analysis to the exclusion of the geographic scope and duration 

elements. Home Paramount contends the geographic scope was 

relatively narrow and the duration was one commonly accepted for 

such provisions, so those elements compensate for the breadth of 

the function element, making the Provision as a whole no broader 

than necessary to protect its legitimate business interests. We 

disagree.
4

We have consistently assessed the function element of 

provisions that restrict competition by determining whether the 

prohibited activity is of the same type as that actually engaged 

in by the former employer. For example, in Blue Ridge 

Anesthesia & Critical Care, Inc. v. Gidick, 239 Va. 369, 389 

S.E.2d 467 (1990), the employer was a medical equipment vendor. 

We upheld a provision that prohibited employees from “open[ing] 

or be[ing] employed by or act[ing] on behalf of any competitor 

of [the] [e]mployer which renders the same or similar services.”

Id. at 370, 389 S.E.2d at 468. However, that provision included 

explicit language allowing employees to “work[] in the medical 

industry in some role which would not compete with the business” 

of the employer. Id. at 371, 389 S.E.2d at 468. We noted that 

“the former employees are not forbidden from working in any

capacity for a medical equipment company, or from selling any

type of medical equipment. They are only prohibited ‘from 

working in the medical industry in some role which would . . .

compete with the business’ ” of the employer. Id. at 373, 389 

S.E.2d at 469 (emphasis in original).

We upheld a similar provision in Advanced Marine 

Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 

(1998). In that case, the employer provided marine engineering 

services and included in its employment agreement a provision 

prohibiting its employees from “rendering competing services to” 
5

any customer of the employer for whom the employee had performed 

services during the period of his employment. Id. at 111, 501 

S.E.2d at 151. We noted that the provision “does not contain a 

blanket prohibition against working for a competitor. Instead, 

[it] merely prohibits an employee . . . from ‘rendering 

competing services to’ ” the former employer’s customers. Id.

at 119, 501 S.E.2d at 155.

By contrast, we held that a broader provision was 

unenforceable in Simmons. It prohibited former employees from 

“directly or indirectly own[ing], manag[ing], control[ing], 

be[ing] employed by, participat[ing] in, or be[ing] connected in 

any manner with ownership, management, operation, or control of 

any business similar to the type of business conducted by” the 

former employer. 261 Va. at 580, 544 S.E.2d at 678. We 

concluded the provision was “considerably broader than” the 

former employer’s business activity, which was limited to the 

importation of a single, “particular brand of cigars grown and 

manufactured in the Canary Islands.” Id. at 581, 544 S.E.2d at 

678.

Likewise, we held the provision to be unenforceable in 

Motion Control Systems, Inc. v. East, 262 Va. 33, 546 S.E.2d 424 

(2001). That provision also prohibited any employee from 

“directly or indirectly own[ing], manag[ing], operat[ing], 

control[ing], be[ing] employed by, participat[ing] in, or 
6

be[ing] associated in any manner with the ownership, management, 

operation or control of any business similar to the type of 

business conducted by” the former employer, namely the 

“design[], manufacture[], [sale] or distribut[ion of] motors, 

motor drives or motor controls.” Id. at 36, 546 S.E.2d at 425. 

The functional limitation was too broad because the former 

employer dealt solely with specialized brushless motors. Id. at 

37-38, 546 S.E.2d at 426.

In Omniplex World Services, we observed that valid 

provisions prohibit “an employee from engaging in activities

that actually or potentially compete with the employee’s former 

employer.” 270 Va. at 249, 618 S.E.2d at 342 (emphasis added). 

But a former employee may find new employment with his former 

employer’s competitor in which he engages exclusively in 

activities that do not compete with the former employer. See 

Blue Ridge Anesthesia, 239 Va. at 373, 389 S.E.2d at 469 (noting 

the unenforceability of a provision prohibiting employment that 

competed with any branch of the former employer’s operations 

when the former employee had no connection to some of those 

branches). When a former employer seeks to prohibit its former 

employees from working for its competitors in any capacity, it

must prove a legitimate business interest for doing so. Modern 

Env’ts, 263 Va. at 495, 561 S.E.2d at 696.
7

In this case, the Provision is akin to those we found 

unenforceable in Simmons and Motion Control. On its face, it 

prohibits Shaffer from working for Connor’s or any other 

business in the pest control industry in any capacity. It bars 

him from engaging even indirectly, or concerning himself in any 

manner whatsoever, in the pest control business, even as a 

passive stockholder of a publicly traded international 

conglomerate with a pest control subsidiary. The circuit court 

therefore did not err in requiring Home Paramount to prove it 

had a legitimate business interest in such a sweeping 

prohibition.

Home Paramount protests that this rule of law invites 

circuit courts to do what the court did in this case, to 

contemplate various “hypothetical job duties” including 

bookkeeping, vehicle maintenance, and janitorial services. But 

Home Paramount invited the circuit court to contemplate such 

hypotheticals when it drafted a provision that prohibits former 

employees from working for competitors in any capacity. Because 

Home Paramount did not confine the function element of the 

Provision to those activities it actually engaged in, it bore 

the burden of proving a legitimate business interest in 

prohibiting Shaffer from engaging in all reasonably conceivable 

activities while employed by a competitor.
8

Home Paramount also argues that the circuit court erred in 

failing to consider its evidence of Shaffer’s academic training 

and work experience – for example, that Shaffer had a bachelor’s 

degree in entomology and had no experience in bookkeeping, 

vehicle maintenance, or janitorial service. This evidence, Home 

Paramount contends, would have eliminated these hypothetical job 

duties from the scope of the court’s consideration. The 

argument that the scope of the function element could be altered 

by extrinsic and extraneous evidence to mean something narrower 

than its clear language is without merit. Home Paramount has 

not argued that the Provision is ambiguous and that recourse to 

parol evidence was required to interpret it. Home Paramount 

thus was limited to adducing evidence to prove that the language 

it chose furthered its legitimate business interests, did not 

unduly burden Shaffer’s ability to earn a living, and was not 

contrary to public policy. See Simmons, 261 Va. at 580-81, 544 

S.E.2d at 678.

Although we weigh the function element of a provision that 

restricts competition together with its geographic scope and 

duration elements,2 the clear overbreadth of the function here 

cannot be saved by narrow tailoring of geographic scope and 

duration. Accordingly, we will affirm the circuit court’s 

 2 Neither Shaffer nor Connor’s has objected to these 

elements of the Provision.
9

judgment that the Provision was overbroad and therefore 

unenforceable.

Citing Paramount Termite Control Co. v. Rector, 238 Va. 

171, 380 S.E.2d 922 (1989),3 Home Paramount also argues that 

“[i]t has been settled law for more than 20 years that similar 

language of Home Paramount’s non-compete agreement is not overly 

broad and is enforceable.” Home Paramount thereby suggests that 

the doctrine of stare decisis compels us to uphold the Provision 

in this case. We disagree.

Stare decisis “is not an inexorable command.” McDonald v. 

City of Chicago, 561 U.S. ___, 130 S.Ct. 3020, 3063 (2010) 

(Thomas, J., concurring) (quoting Lawrence v. Texas, 539 U.S. 

558, 577 (2003)) (internal quotation marks omitted). It “was 

never meant to prevent a careful evolution of the law. Stare 

decisis, pushed to extremes, would mean the law, once stated by 

the courts, could never be changed by the courts.” Selected 

Risks Ins. Co. v. Dean, 233 Va. 260, 276, 355 S.E.2d 579, 588 

(1987) (Poff, J., dissenting).

Without such change, we would be compelled

to ignore our duty to develop the orderly 

evolution of the common law of this Commonwealth. 

Indeed, this Court’s obligation to reexamine 

critically its precedent . . . enhance[s] 

confidence in the judiciary and strengthen[s] the 

importance of stare decisis in our jurisprudence. 

 3 Home Paramount is the successor-in-interest to the 

prevailing party in this 1989 case.
10

Although we have only done so on rare occasions, 

we have not hesitated to reexamine our precedent 

in proper cases and overrule such precedent when 

warranted.

Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997). 

One condition warranting a departure from precedent is where the 

law has changed in the interval between the earlier precedent 

and the case before us. See Lentz v. Morris, 236 Va. 78, 81-82, 

372 S.E.2d 608, 609-10 (1988). Then “[w]e have a duty . . . to 

acknowledge when our later decisions have presented an 

irreconcilable conflict with [the earlier] precedent.” Newman 

v. Erie Ins. Exch., 256 Va. 501, 509, 507 S.E.2d 348, 352-53 

(1998).

We acknowledge that the language of the provision we upheld 

in Paramount Termite is identical to the Provision. However, we 

have incrementally clarified the law since that case was decided 

in 1989. In the intervening twenty-two years, we have gradually 

refined its application beginning with Blue Ridge Anesthesia and 

continuing through Advanced Marine Enterprises, Simmons, Motion 

Control Systems, and ultimately Omniplex World Services in 2005. 

Therefore, to the extent that Paramount Termite conflicts with 

any portion of our holding today, Paramount Termite is 

overruled.

Finally, Home Paramount argues the circuit court erred in 

failing to consider its evidence that Shaffer actually breached 
11

the Provision by soliciting its customers. However, the 

threshold question is whether the Provision is enforceable. 

Since the circuit court determined that the Provision cannot be 

enforced, the issue of its actual breach was not reached. To

the extent that Home Paramount argues its evidence of actual 

solicitation proved it had a legitimate business interest in 

prohibiting Shaffer from engaging in the same activity for 

Connor’s that he engaged in during the course of his employment 

by Home Paramount, such evidence would have been relevant if the 

function element in the Provision had been confined to barring 

such activity. Because we have found the circuit court did not 

err in ruling the Provision unenforceable, Home Paramount’s 

evidence of Shaffer’s actual breach was not relevant.

III. CONCLUSION

For the foregoing reasons, we will affirm the judgment of 

the circuit court.

Affirmed.

JUSTICE McCLANAHAN, dissenting.

The test for determining the validity of a non-compete 

agreement was the same when this Court, in 1989, decided 

Paramount Termite Control Co. v. Rector, 238 Va. 171, 380 S.E.2d 

922 (1989), as it is today. Applying this test, we held in 

Paramount that the non-compete agreement at issue was valid. 

The non-compete agreement at issue in this case, involving the 
12

very same company and business interests, is identical to the 

one we upheld in Paramount, as the majority acknowledges. The 

majority nevertheless rejects Paramount as controlling authority 

in this case, and, indeed, overrules it. Adherence to the 

doctrine of stare decisis, in my opinion, demands otherwise.

In overruling Paramount, the majority in effect penalizes 

the eminently and uniquely justified reliance of this Virginia 

business upon this prior precedent in ordering its affairs after 

prevailing in the prior case. As Montesquieu cautioned, were 

judicial opinions "to be the private opinion of the judge, 

people would then live in society, without exactly knowing the 

nature of their obligations." 1 Charles de Secondat, Baron de 

Montesquieu, Spirit of Laws 165 (J. V. Prichard ed., Thomas 

Nugent trans., G. Bell & Sons, Ltd. 1914) (1752). With today's 

decision, the majority fails to give due respect and deference 

to a basic tenet of stare decisis, which is that "in a well 

ordered society it is important for people to know what their 

legal rights are, not only under constitutions and legislative 

enactments but also as defined by judicial precedent, and when 

they have conducted their affairs in reliance thereon they ought 

not to have their rights swept away by judicial decree." Myers 

v. Moore, 204 Va. 409, 413, 131 S.E.2d 414, 417 (1963). "For it 

is an established rule to abide by former precedents," 

Blackstone explained, "where the same points come again in 
13

litigation; as well to keep the scale of justice even and 

steady, and not liable to waver with every new judge's opinion." 

1 William Blackstone, Commentaries *69.*

I therefore must dissent, agreeing with Justice Compton in 

Newman v. Erie Ins. Exch., 256 Va. 501, 510, 507 S.E.2d 348, 353 

(1998) (Compton, J., dissenting) (quoting Smith v. Allwright, 

321 U.S. 649, 669 (1944) (Roberts, J., dissenting)) that 

"[f]requent overruling of an appellate court's decisions tends 

to bring adjudications of the tribunal 'into the same class as a 

restricted railroad ticket, good for this day and train only.' " 

 * Judge Kelsey, with our Virginia Court of Appeals, put it 

well when he wrote: "By insisting upon a deep respect for stare 

decisis, the blueprints for the judiciary sought to siphon off 

decisionmaking power from those who, at a given moment, occupy 

the bench and then redistribute that power along a 

multigenerational line of jurists." D. Arthur Kelsey, The 

Architecture of Judicial Power: Appellate Review & Stare 

Decisis, Virginia Lawyer (Oct. 2004, at 17). See also The 

Federalist No. 78 (A. Hamilton) (explaining that the judiciary 

would be self-policing through adherence to precedents).