Present: Lacy, Keenan, Koontz, Kinser, Lemons, and Agee, JJ., 

and Stephenson, S.J. 

OMNIPLEX WORLD SERVICES CORPORATION 

v. Record No. 042287 OPINION BY JUSTICE ELIZABETH B. LACY 

 September 16, 2005 

US INVESTIGATIONS SERVICES, 

INC., ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

In this appeal, we consider whether the provisions of a 

non-competition contract are overbroad and unenforceable. 

FACTS AND PROCEEDINGS 

Omniplex World Services Corporation (Omniplex) is a 

highly specialized employment agency that provides a variety 

of security services to government and private sector 

customers. In August 2003, Omniplex prevailed in its bid to 

provide staffing for a government agency, referred to as a 

"Sensitive Government Customer" or "SGC," in a project 

entitled "Project Eagle." Staffing of this project required 

that personnel have a "Top-Secret" security clearance 

validated by the SGC, regardless of the function performed.

 At the time Omniplex won the bid, Kathleen M. Schaffer 

was working on Project Eagle as an employee of MVM, Inc., 

another staffing company. Upon learning that MVM no longer 

had the contract to staff Project Eagle, Schaffer sent out 

applications for employment to various staffing agencies, 
2

including The Smith Corporation. Before receiving a response 

from The Smith Corporation, Schaffer was offered continued 

employment at Project Eagle by Omniplex. On August 26, 2003, 

Schaffer signed a one-year employment agreement with Omniplex. 

The agreement provided for a $2,000 bonus and included a noncompetition provision. That provision stated in pertinent 

part: 

Employee hereby covenants and agrees that, 

immediately following any termination of 

employment from OMNIPLEX that occurs before 

the expiration of the Term, . . . Employee 

shall not for the remainder of the Term (i) 

accept employment, become employed by, or 

perform any services for OMNIPLEX's Customer 

for whom Employee provided services or for any 

other employer in a position supporting 

OMNIPLEX's Customer, if the employment or 

engagement requires Employee to possess the 

same level of security clearance Employee 

relied on during his employment with OMNIPLEX, 

. . . . 

Schaffer worked for Omniplex in general administrative 

security support, monitoring alarms and intrusion detection 

systems at the SGC's general headquarters, an overt location.

 On October 23, 2003, The Smith Corporation responded to 

Schaffer's earlier employment application and offered her a 

position as an administrative assistant for the SGC at a 

covert location. This position required her to arrange 

travel, including obtaining visas and passports and offered a 

higher hourly wage than Schaffer was currently earning. 
3

Schaffer accepted the offer and, on November 4, 2003, resigned 

from Omniplex and returned the $2,000 bonus.

 Omniplex filed a three-count motion for judgment claiming 

that Schaffer breached her employment contract, that The Smith 

Company and U.S. Investigation Services, Inc., the parent 

company of The Smith Company (collectively "USIS"), tortiously 

interfered with Schaffer's employment contract, and that 

Schaffer and USIS engaged in a conspiracy to injure Omniplex's 

business in violation of Code § 18.2-499. Omniplex sought 

injunctive relief and $1,350,000 in damages. The trial court 

denied Omniplex's motion for a temporary injunction.

Following an ore tenus hearing, the trial court struck 

Omniplex's evidence, concluding that the non-compete provision 

of Schaffer's employment agreement was overbroad. Based on 

this conclusion, the trial court entered an order dismissing 

all three counts of Omniplex's motion for judgment. We 

awarded Omniplex an appeal. 

DISCUSSION 

The standards we apply in reviewing a covenant not to 

compete are well established. A non-competition agreement 

between an employer and an employee will be enforced if the 

contract 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 
4

policy. Modern Env'ts, Inc. v. Stinnett, 263 Va. 491, 493, 

561 S.E.2d 694, 695 (2002); Simmons v. Miller, 261 Va. 561, 

580-81, 544 S.E.2d 666, 678 (2001). Because such restrictive 

covenants are disfavored restraints on trade, the employer 

bears the burden of proof and any ambiguities in the contract 

will be construed in favor of the employee. Id. at 581, 544 

S.E.2d at 678. Each non-competition agreement must be 

evaluated on its own merits, balancing the provisions of the 

contract with the circumstances of the businesses and 

employees involved. See Modern Env'ts, 263 Va. at 494-95, 561 

S.E.2d at 696. Whether the covenant not to compete is 

enforceable is a question of law which we review de novo. 

Simmons, 261 Va. at 581, 544 S.E.2d at 678; Motion Control 

Sys., Inc. v. East, 262 Va. 33, 37, 546 S.E.2d 424, 426 

(2001). 

These standards have been developed over the years to 

strike a balance between an employee’s right to secure gainful 

employment and the employer’s legitimate interest in 

protection from competition by a former employee based on the 

employee's ability to use information or other elements 

associated with the employee's former employment. Worrie v. 

Boze, 191 Va. 916, 927-28, 62 S.E.2d 876, 882 (1951). By its 

very name, a covenant not to compete is an agreement to 

prevent an employee from engaging in activities that actually 
5

or potentially compete with the employee's former employer. 

Thus, covenants not to compete have been upheld only when 

employees are prohibited from competing directly with the 

former employer or through employment with a direct 

competitor. Compare Motion Control Sys., 262 Va. at 37-38, 

546 S.E.2d at 426 (covenant not to compete restricting 

employment with motor manufacturers that did not manufacture 

motors similar to employer overbroad because covenant did not 

protect against competition), and Richardson v. Paxton Co., 

203 Va. 790, 795, 127 S.E.2d 113, 117 (1962)(covenant not to 

compete that restricted former employee, who sold specific 

supplies and services, from working for any employer involved 

with any kind of supplies, equipment, or services in the same 

industry overbroad because covenant encompassed business for 

which employer did not compete), with Blue Ridge Anesthesia 

and Critical Care, Inc. v. Gidick, 239 Va. 369, 373, 389 

S.E.2d 467, 469 (1990)(non-competition agreement reasonable 

because restriction protected against direct competition by 

prohibiting former employees from employment with another 

company in a position selling similar medical equipment to 

that sold by former employer), and Roanoke Eng'g Sales Co. v. 

Rosenbaum, 223 Va. 548, 553, 290 S.E.2d 882, 885 (1982)(noncompetition covenant reasonable because employment restriction 

limited to activities similar to business conducted by former 
6

employer). The restriction in this case is not limited to 

positions competitive with Omniplex. 

Under the provision at issue, Schaffer is prohibited from 

performing "any services . . . for any other employer in a 

position supporting OMNIPLEX's Customer."* (Emphasis added.) 

This provision precludes Schaffer from working for any

business that provides support of any kind to the SGC, not 

only security staffing businesses that were in competition 

with Omniplex. Thus, for example, the non-competition 

agreement precludes Schaffer from working as a delivery person 

for a vendor which delivers materials to the SGC if such 

security clearance was required to enter an SGC installation 

even though the vendor was not a staffing service competing 

with Omniplex. Because the prohibition in this noncompetition provision is not limited to employment that would 

be in competition with Omniplex, the covenant is overbroad and 

unenforceable. Motion Control Sys., 262 Va. at 37-38, 546 

S.E.2d at 426; Richardson, 203 Va. at 795, 127 S.E.2d at 117. 

 Accordingly, for the reasons stated, we will affirm the 

judgment of the trial court. 

Affirmed.

JUSTICE AGEE, with whom JUSTICE KEENAN and JUSTICE KINSER 

join, dissenting. 

 

* It is uncontested that the "customer" referred to in the 

non-competition provision is the SGC. 
7

The trial court found that the restrictive covenant at 

issue in this case was overly broad because it had no 

geographic specification, in effect a worldwide covenant.1 Not 

commenting on the trial court's rationale, the majority holds 

that the covenant is unreasonable because it does not limit 

the prohibited positions to those of direct competition. 

Under the specific facts of this case, I cannot agree with 

either view and therefore respectfully dissent. 

 The majority cites Motion Control Systems, Inc. v. East, 

262 Va. 33, 37-38, 546 S.E.2d 424, 426 (2001), and Richardson 

v. Paxton Co., 203 Va. 790, 795, 127 S.E.2d 113, 117 (1962), 

to support its holding that the noncompete provision is 

overbroad because the contract restriction is not limited to 

employment that would be in competition with Omniplex. 

Neither of these cases, or any others, however, establish a 

rule that noncompete provisions are per se unenforceable if 

they fail to limit the restriction to those positions in 

direct competition with the former employer. Rather, in each 

case we held that under the facts of that case, the 

restrictive covenant at issue "imposed restraints that 

 1

 The noncompetition agreement also contains a provision prohibiting Schaffer from 

providing "security or security support services . . . within a fifty (50) mile radius of the site 

or location which Employee primarily provided services during . . . Omniplex employment." 

Apparently, the trial court did not rule on the applicability of this provision and it is not before 

us in this appeal. 
8

exceeded those necessary to protect [the former employer's] 

legitimate business interests." Motion Control, 262 Va. at 

38, 546 S.E.2d at 426. See also Richardson, 203 Va. at 795, 

127 S.E.2d at 117 ("Such restraint is unreasonable in that it 

is greater than is necessary to protect Paxton in his 

legitimate business interest, and it is unreasonable from the 

standpoint of Richardson because it is unduly harsh on him in 

curtailing his legitimate efforts to earn a livelihood. Thus 

it cannot be enforced."). 

 In a more recent case, Modern Environments, Inc. v. 

Stinnett, 263 Va. 491, 494-95, 561 S.E.2d 694, 695-96 (2002), 

we affirmed our view that a court may not determine the 

enforceability of a restrictive covenant which prohibits a 

former employee from working for a competitor in any capacity, 

by the language of the covenant alone. Surveying precedent, 

we noted that we have "not limit[ed] [our] review to 

considering whether the restrictive covenants were facially 

reasonable." Id. at 494, 561 S.E.2d at 696. Rather, we have 

"examined the legitimate, protectable interests of the 

employer, the nature of the former and subsequent employment 

of the employee . . . and the nature of the restraint in light 

of all the circumstances of the case." Id. at 494-95, 561 

S.E.2d at 696. 
9

 These considerations form the basis of the three-part 

test we use to determine the validity of restrictive 

covenants: 

 (1) Is the restraint, from the standpoint of the 

employer, reasonable in the sense that it is no 

greater than necessary to protect the employer in 

some legitimate business interest? (2) From the 

standpoint of the employee, is the restraint 

reasonable in the sense that it is not unduly 

harsh and oppressive in curtailing his legitimate 

efforts to earn a livelihood? (3) Is the 

restraint reasonable from the standpoint of a 

sound public policy? 

Simmons v. Miller, 261 Va. 561, 580-81, 544 S.E.2d 666, 678 

(2001). In examining the reasonableness of the restrictive 

covenant with regard to the interests of the employer, 

employee, and the public at large, we pay particular attention 

to the duration, function, and geographic reach of the 

covenant. Id. at 581, 544 S.E.2d at 678. We consider the 

reasonableness of the covenant on the facts of each particular 

case. Paramount Termite Control Co. v. Rector, 238 Va. 171, 

174, 380 S.E.2d 922, 924 (1989). The employer seeking to 

enforce the restrictive covenant bears the burden of proving 

that the restraint is reasonable in light of those facts. 

Simmons, 261 Va. at 581, 544 S.E.2d at 678. We review the 

record de novo to determine whether Omniplex has met its 

burden. Id. 
10

 Omniplex argues that it has a legitimate business 

interest in retaining employees who hold the necessary toplevel security clearance during the first year of its contract 

with the SGC. Neither the trial court nor the majority found 

that Omniplex' stated interest was not a legitimate business 

interest, but Schaffer argues on brief that retaining 

employees is not a legitimate business interest because this 

Court has never recognized it as such. Such an argument 

misinterprets the applicable law in this case. 

Unlike courts of other jurisdictions, we have never 

established discrete categories of legitimate business 

interests which may be the subject of a restrictive covenant. 

Instead, we have placed the burden on the employer to show 

that the restrictive covenant is designed to protect an 

important business interest particular to that employer. See

Modern Environments, 263 Va. at 495, 561 S.E.2d at 696 

(conclusory statement that restrictive covenant protects a 

legitimate business interest, without explaining that 

interest, is insufficient). Even so, we have recognized 

Omniplex' stated business interest in an analogous context. 2 

See Therapy Services v. Crystal City Nursing Center, 239 Va. 

 2

 See generally Richardson v. Paxton Co., 203 Va. 790, 792, 127 S.E.2d 113, 115 

(1962) (finding noncompete agreement to be unreasonably restrictive to protect employer's 

business interest, but not disputing employer's asserted business interest in retaining 

salespeople). 
11

385, 388, 389 S.E.2d 710, 711-12 (1990) (recognizing a 

company's "legitimate interest in protecting its ability to 

maintain professional personnel in its employ, thus enabling 

it to provide the services required under its contracts").3 

The record in this case reflects that Omniplex has shown it 

has a legitimate business interest in retaining "cleared" 

employees like Schaffer during the first year of the Project 

Eagle contract. 

 At trial, Michael M. Wines, Omniplex' vice president of 

security services, explained that as part of the SGC's bidding 

process, a staffing company must describe the steps that it 

will take to maintain a stable workforce and ensure that the 

project will be adequately staffed. Once awarded the Project 

Eagle contract, Omniplex was required to report staffing 

levels and plans for future staffing to the SGC on a regular 

basis. In the past, the SGC has cancelled contracts when a 

company could no longer provide sufficient "cleared" staff. 

 Wines described the impact on Omniplex when a cleared 

employee departs suddenly: 

[Y]ou have an employee that has institutional 

knowledge, has the clearance, has goodwill with the 

client, the client has a comfort level with them 

. . . . 

 3

 The noncompete provision in Therapy Services was contained in a contract between 

the staffing company and the client and was not a part of an employment contract. See 239 

Va. at 387, 389 S.E.2d at 711. 
12

 But . . . it also creates . . . a serious 

concern about contract performance . . . 

[especially] in the first year [of a contract]. As 

a first-year, a new contractor [is] trying to 

establish goodwill with the client, . . . a stable 

workforce, [and] ensure the client that they made 

the right selection. 

. . . . 

[W]hen [our employee is] working for us today, and 

the very next day they're [sic] working for one of 

our competitors in the same facility, supporting the 

same client[,] [t]he client starts to question our 

ability to retain employees. 

Wines noted that while turnover is inevitable in any company, 

Omniplex has particular concerns about other staffing 

companies "poaching"4

 employees with top security clearances: 

"[M]any times our competitors are willing to pay additional 

funds for an employee [who is] not qualified for a position 

just because the employee has a clearance." He testified that 

on a former contract, a competitor of Omniplex "poached five 

[out of eight] people in one day." Wines noted that if a 

similar situation occurred on Project Eagle, "the only way 

[Omniplex] would be able to meet [its] contractual 

 4

 Wines distinguished the problem of "poaching" from the industry practice of hiring 

the incumbent workforce at a site when a staffing company takes over a contract from an 

outgoing security firm. When Omniplex was awarded the Project Eagle contract, it offered 

higher salaries and benefits to the incumbent workforce at the Project Eagle site. Wines 

testified that this practice is necessary as the incoming staffing company is required to assume 

contractual duties almost immediately, and the company is not allowed to submit an employee 

for a security clearance until after that company is awarded the contract. Because the security 

clearance process takes an average of 12 months, it is unlikely that the contractor could 

provide enough cleared staff for the crucial first year of the contract without hiring the 

incumbent employees. 
13

requirements would be forcing our existing staff to work 

overtime." 

 USIS has the same concerns. Peter F. Waldorf, an 

operations director for USIS, agreed that it is "very 

important for [USIS] to provide an adequate amount of 

cleared staff to [its] government customers." Waldorf 

also agreed that adequate staffing was a particularly 

important concern to the SGC, and that a government 

contractor such as USIS must maintain adequate staffing 

levels to be viable. Anthony Gallo, president of USIS 

professional services division, testified that in order 

to protect USIS' business interests, Schaffer was 

required to sign a noncompete5

 agreement similar to that 

which she signed with Omniplex upon accepting employment.6 

Gallo testified this was necessary "to demonstrate to 

your customers that your company has the capacity to 

maintain a stable workforce . . . ." 

 5

 The USIS noncompete provision reads in pertinent part: 

Employee agrees that during his or her term of employment and for a 

six (6) month period commencing on the last day of Employee's 

employment with Company, whether terminated for cause or otherwise, 

he or she may not without Company permission, directly or indirectly, 

(a) [provide] services similar to those provided by the Company to 

any Customer; or 

(b) assist any . . . enterprise in bidding, soliciting or procuring 

services similar to those provided by the Company to its Customers; 

. . . . 6

 Significantly, the USIS covenant is longer in duration than that of Omniplex, and 

prohibits employment with any entity serviced by USIS during the former employee's term of 

employment. 
14

 In order to protect its interest in maintaining a 

stable, qualified workforce during the crucial first year 

of the Project Eagle contract, Omniplex required each of 

its employees to sign a restrictive covenant prohibiting 

employment with any firm which supports the SGC, within a 

year from the first day of service with Omniplex, but 

only if such employment requires the same security 

clearance the SGC required. Omniplex argues that this 

restrictive covenant is narrowly tailored to protect its 

legitimate business interest during the contract's first 

year. I agree with Omniplex and would find that the 

restrictive covenant, as drawn in this case, is a 

reasonable protection of Omniplex' legitimate business 

interest to maintain a sufficient number of "cleared" 

employees during Project Eagle's first year. 

 Omniplex' success on Project Eagle is dependent upon 

its ability to retain "cleared" employees during the 

first year of the contract. The restrictive covenant 

commits an Omniplex employee only during the first year 

of employment and places no restrictions on an employee 

who leaves to take another position after that time. For 

one year after beginning employment with Omniplex, 

Schaffer was prohibited from working anywhere in the 

world for any independent contractor of the SGC if the 
15

new position required her SGC security clearance. In 

this case, the restriction on Schaffer would last only 

nine and one-half months. 

This Court has noted that 

[i]n determining the reasonableness and 

enforceability of restrictive covenants, trial 

courts must not consider function, geographical 

scope, and duration as three separate and distinct 

issues. Rather, these limitations must be 

considered together. 

Simmons, 261 Va. at 581, 544 S.E.2d at 678. In my view, 

the trial court and the majority place undue and 

exaggerated emphasis on the covenant's lack of geographic 

restriction and lack of prohibited competitive 

activities, respectively. Both failed to give due weight 

to the other narrow aspects of the restriction. As noted 

above, the covenant applies only to employment with 

entities servicing the SGC in positions which require 

Schaffer's top-level security clearance. Schaffer is 

otherwise free to work for any other employer at any 

location in the world. She can work for any competitor 

of Omniplex, even one providing services to the SGC, so 

long as a lower security clearance is used (subject to 

other provisions of the noncompetition agreement). The 

record contained no evidence that Schaffer's work skills 

could only be used at the SGC as opposed to other 
16

potential employers. Considering all these factors in 

context, the fact that the restrictive covenant does not 

contain a geographic limitation or a list of prohibited 

competitive positions does not make it overly broad. 

The majority holds the noncompetition agreement is 

overbroad because it bars Schaffer from "perform[ing] any 

services for OMNIPLEX' customer." Such a restriction, the 

majority argues, would "preclude[] Schaffer from working as a 

delivery person for a vendor which delivers materials to the 

SGC if such security clearance was required to enter an SGC 

installation even though the vendor was not a staffing service 

competing with Omniplex." Even if the majority's analysis of 

the restrictive covenant is correct on this point, the 

possible prohibition on Schaffer's employment as an SGC 

delivery person is not overly broad. 

Omniplex has a well-defined, vital business interest in 

prohibiting Schaffer from seeking other employment using her 

particular security clearance. Without the ability to enforce 

the narrowly drawn restriction, Omniplex' legitimate business 

interest may be vitiated. While it seems unlikely that 

Domino's Pizza or UPS would need a top level security 

clearance employee to deliver a pizza or a package to an SGC 

site, I would not find a restrictive covenant with such an 

effect to be overly broad under the specific facts of this 
17

case. As noted above, the restrictive covenant at issue is 

limited to only one entity, the SGC, and only in the first 

year of the contractual relationship. That leaves the rest of 

the world's entities for the pizza or package delivery person 

to service. Considering all the circumstances, the covenant 

is reasonable. 

 In addition, this Court has upheld restrictive covenants 

which lack a geographic restriction. In Foti v. Cook, 220 Va. 

800, 805-07, 263 S.E.2d 430, 433-34 (1980), we affirmed the 

trial court's decision to enforce a restrictive covenant which 

prohibited a former accounting firm partner from performing 

services for any client of the partnership. The covenant in 

that case did not contain a geographic restriction, but rather 

centered on contact with former clients. Id. at 807, 263 

S.E.2d at 434. Like the enforceable restrictive covenant in 

Foti, Schaffer's noncompete agreement is client-specific, 

rather than geographically based. Schaffer's contract is 

much more narrowly drawn than the one in Foti, because the 

restrictive limit goes to only one Omniplex client and not to 

any others. 

 Similarly in Advanced Marine Enterprises v. PRC Inc., 256 

Va. 106, 111, 127, 501 S.E.2d 148, 151, 160 (1998), we upheld 

a noncompete agreement which prohibited a former employee from 

competing with the employer within 50 miles of any of the 
18

employer's offices. We noted that even though the employer 

had 300 offices worldwide, the geographic restriction was 

reasonable because other elements of the restriction were more 

narrowly tailored. Id. at 119, 501 S.E.2d at 155. 

 In addition to considering the other narrowly tailored 

aspects of the restrictive covenant, I believe that our factspecific inquiry requires us to consider the nature of the 

employer's business in determining whether any geographic 

restriction is necessary. I agree with the United States 

Court of Appeals for the Fourth Circuit that 

[w]ith respect to the territory to which the 

restriction should apply, the rule has always been 

that it might extend to the limits wherein the 

plaintiff's trade would be likely to go. The changes 

which have marked the course of judicial decisions 

in modern times seem to consist in conforming the 

application of the rule to the constant development 

of the facilities of commerce and the enlargement of 

the avenues of trade. 

National Homes Corp. v. Lester Indus., Inc., 293 F. Supp. 

1025, 1034 (W.D. Va. 1968) (citation omitted), aff'd in part 

and rev'd in part, 404 F.2d 225 (4th Cir. 1968). See, e.g., 

West Publ'g Corp. v. Stanley, No. 03-5832, 2004 U.S. Dist. 

LEXIS 448, at *32 (D. Minn. 2004) (restrictive covenant 

lacking geographic limitation was "reasonable in light of the 

national, and . . . international, nature of internet 

business"). 
19

Omniplex and its competitors service government agencies 

both nationally and overseas. A particular government client 

may have contracts with multiple staffing companies for its 

various locations. A security clearance specific to such a 

client is a valuable asset and renders an employee vulnerable 

to "poaching" by a competitor, who also has a contract with 

that government client. Without its worldwide scope as to the 

single client, SGC, the restrictive covenant could not protect 

Omniplex' interest in protecting its workforce during the 

crucial first year on Project Eagle. 

Likewise, limiting those positions an employee can take 

after leaving Omniplex does not sufficiently protect Omniplex' 

interest in maintaining adequate staffing. If Omniplex 

restricted Schaffer's subsequent employment by the tasks she 

performed, she would have no incentive not to use her valuable 

SGC specific security clearance to obtain other employment 

serving the SGC. 

The restrictive covenant at issue in this case, when 

viewed in the context of the facts of this record, meets the 

three-part test for the validity of such covenants 

particularly for purposes of sufficiency on a motion to strike 

the evidence. The contractual restraint has been amply 

demonstrated to be reasonable, even essential, to protect 

Omniplex' contractual interests with the SGC. The restraint 
20

is no greater than necessary to protect that interest, 

particularly when drawn for such a short period of time and 

without restriction on Schaffer's freedom to seek employment 

providing services to any employer in the world except one 

working at the SGC and requiring her level of security 

clearance. 

For these same reasons, it cannot be said the restrictive 

covenant is unduly harsh in limiting Schaffer's ability to 

earn a livelihood. Finally, the restraint is reasonable from 

a public policy standpoint. When drawn as narrowly as in this 

case, the restrictive covenant safeguards the ability in 

unique economic circumstances for an employer to maintain the 

contracts that enable it to be a viable entity, particularly 

in the areas of national security and defense. Accordingly, I 

would reverse the judgment of the trial court and therefore 

respectfully dissent from the majority opinion.