![]() 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. Home Paramount asserts that the circuit court erred by focusing on the language of the Provision prohibiting Shaffer from engag indirectly or concern himself. These elements are considered together rather than as three separate and distinct issues. When evaluating whether the employer has met that burden, we consider the function, geographic scope, and duration elements of the restriction. 2 The employer bears the burden of proving each of these factors. 1 The nonsuited claims are not within the scope of this appeal. 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. ANALYSIS The enforceability of a provision that restricts competition is a question of law that we review de novo. The remaining counts then were nonsuited and we awarded Home Paramount this appeal. After an evidentiary hearing, the circuit court granted the plea in bar and dismissed the relevant counts of the amended complaint. The defendants filed a plea in bar to these claims, asserting that the Provision is overbroad and therefore unenforceable. 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. Soon thereafter and within the two-year period set forth in the Provision, he became employed by Connor s Termite and Pest Control, Inc. In July 2009, Shaffer resigned from 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. BACKGROUND AND MATERIAL PROCEEDINGS BELOW Justin Shaffer was an employee of Home Paramount Pest Control Companies, Inc. Smith, Judge In this appeal, we consider whether a non-compete provision in an employment agreement is overbroad and therefore unenforceable. FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. PRESENT: All the Justices HOME PARAMOUNT PEST CONTROL COMPANIES, INC.
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