Sentry Force: Customer and Coworker Solicitation Clauses Received Different Treatment

A letter from a former employer may group every contact with customers and coworkers under “noncompetition.” The wording of each restriction can lead to different results. In Sentry Force Security, LLC v. Barrera, the Virginia Court of Appeals treated the customer and employee clauses separately. Applying the 2020 version of Virginia Code section 40.1-28.7:8, it allowed the employer’s position on customer solicitation to proceed while affirming the statutory protection against the employee-solicitation restriction at issue.

The appeal addressed a threshold legal issue, not a trial verdict

Sentry Force hired James Barrera as an account manager in 2021. Their agreement restricted conduct for at least two years after the employment relationship ended. One clause barred hiring, attempting to hire, or inducing or assisting employees and other personnel to leave without written consent. Another barred influencing customers to obtain competing services, while excluding general advertising and similar marketing.

Sentry Force alleged that Barrera formed a competing security business while employed, used confidential pricing to solicit customers and encouraged employees to move to the new firm. Barrera denied nearly all the complaint’s factual allegations. After a demotion to office manager, he alleged that his roughly $50,000 annual pay brought him within Virginia’s low-wage employee protection. His counterclaim challenged the restrictive agreement.

The employer raised a “plea in bar,” seeking to defeat the counterclaim on a distinct threshold issue. No evidence was taken. The appellate court therefore worked from the pleadings and treated the counterclaim’s facts as true for that purpose. The parties also assumed low-wage status for the appeal; the court expressly identified that status as a question beyond the threshold determination before it. Sentry Force explains that qualification, which matters when reading its account of the parties’ competing allegations.

The statute’s customer-contact language narrowed its broad definition

The 2020 statute barred entering into, enforcing or threatening to enforce a covenant not to compete with a low-wage employee. Its definition broadly covered an employment agreement restricting a person’s ability to compete after leaving. A second sentence addressed serving the former employer’s customers where the employee did not initiate contact or solicit them.

The court read those sentences together. The specific customer-contact qualification gave meaning to a distinction within the broader definition: An employer could restrict direct solicitation, while a former employee who was approached by a customer could accept its business. Reading the second sentence as simply repeating the first would deprive it of independent effect. The court supported that reading with principles requiring every statutory provision to do work and specific language to inform general language. Sentry Force develops that reasoning.

The agreement’s customer clause addressed influencing customers toward a competitor. Under the statute as applied here, that restriction fell outside the prohibited covenant definition. The court therefore reversed the trial court’s contrary threshold ruling on the customer clause. Its explanation of a customer approaching the former employee appears in Sentry Force.

The customer qualification did not extend to recruiting coworkers

The separate restriction on recruiting employees restrained competition after employment and thus fit the statute’s broad definition. The second sentence specifically addressed customers and clients; it supplied no corresponding employee-recruitment exception. The court therefore affirmed the ruling that the statute prevented enforcement of that employee restriction against Barrera on the appeal’s assumed low-wage premise.

The different results followed from different conduct and statutory text within the same agreement. Calling both clauses “nonsolicitation” did not make them legally interchangeable. Sentry Force analyzes the employee clause separately.

The remaining lawsuit and appropriate fees returned to the trial court

The employer’s complaint also asserted duties of loyalty, confidential-information, trade-secret and related theories. Those allegations provided background to the dispute. The interlocutory appeal resolved the statutory treatment of the two restrictions rather than determining damages for those allegations. Barrera’s counterclaim sought $100,000, among other relief; that requested amount was not an award.

The court affirmed in part, reversed in part and remanded for further proceedings. Because Barrera and the competing company succeeded on the employee-solicitation issue, it also directed the trial court to award appropriate attorney fees and costs under the statute. The operative disposition and fee direction appear in Sentry Force.

This unpublished Virginia appellate opinion applied the statutory version identified in the decision to the agreement before it. For a California worker, the governing law and agreement require their own analysis. Our guide to customer-initiated contact explains the practical distinction without treating this Virginia ruling as a California rule.