Are Non-Competes Enforceable for Dentists and Dental Staff in Virginia?

Virginia Code § 40.1-28.7:8(B) is blunt: “No employer shall enter into, enforce, or threaten to enforce a covenant not to compete with any low-wage employee or health care professional.”

For a dental practice, the low-wage category is the one that bites — and one route into it has nothing to do with pay.

The statute defines a “low-wage employee” two ways: anyone whose average weekly earnings fall below the Commonwealth's average weekly wage, and anyone entitled to overtime under the federal FLSA regardless of earnings.

Interns, students, apprentices and trainees count too.

An hourly, non-exempt hygienist, assistant or front-office team member is entitled to overtime — and entitlement is all the definition needs, at any salary.

(Most hygienists are paid hourly and are non-exempt in practice; federal rules treat a hygienist as meeting the learned-professional duties test only after four academic years of pre-professional and professional study in a CODA-accredited program, and the salary-basis test still applies.)

This page is the employer's view.

If you are the associate handed a covenant to sign, that is the worker's side of the question — see our guide to dentist non-compete agreements.

Federal first, because the question comes up in every hiring conversation: there is no federal rule banning employee non-competes at a dental practice.

The FTC's 2024 rule was set aside in court and never took effect, and in a final rule published February 12, 2026 the FTC removed it from the Code of Federal Regulations — though the FTC says it can still challenge individual covenants case by case when they are unjustified, overbroad or anticompetitive.

In Virginia the rule is statutory: § 40.1-28.7:8 of the Virginia Code.

Subsection B carries the ban quoted above, and the same section holds the two definitions that decide everything — “low-wage employee,” covered above, and “health care professional,” covered below.

The legislature widened the statute in 2026 (Acts 2026, chapters 883, 1113 and 1114), adding health care professionals effective July 1, 2026, and subsection C — the termination rule covered under what courts require, below — sits in the statute's current text too.

One hedge for older paperwork: this page's research could not open the 2026 chapter texts, so whether the amendments reach covenants signed before July 1, 2026 is unverified.

If your covenants predate that date, have counsel check which version governs them.

The enforcement machinery is real.

An employer that violates the ban faces a $10,000 civil penalty for each violation, plus the employee's attorney fees and damages in court, and must post a copy or an approved summary of § 40.1-28.7:8.

If you read that Virginia “banned healthcare non-competes” in 2026 and assumed your associate was covered, the statute's own definition says otherwise: “Health care professional” means any person licensed, registered, or certified by the Board of Medicine, Nursing, Counseling, Optometry, Psychology, or Social Work.

The Board of Dentistry is not on that list, so the 2026 addition does not reach dentists or dental hygienists as healthcare providers.

What can still catch a dentist is the earnings line.

The low-wage test reaches anyone averaging under the Commonwealth's average weekly wage, and Virginia Code § 65.2-500 caps the state's workers' compensation maximum at 100% of that same figure — the rate the Virginia Workers' Compensation Commission publishes is $1,507.01 a week from July 1, 2026, and was $1,463.10 the year before.

Treat the published rate, $1,507.01 a week as of July 1, 2026, as the practical line: an associate averaging under it is a low-wage employee whatever their license says, and the non-compete ban applies to them.

Pay structure matters on both sides of that line.

Under federal FLSA regulations, a licensed dentist actually practicing is an exempt professional, so the overtime prong does not usually capture an associate.

And Virginia excludes employees paid mainly by commissions, incentives or bonuses from the low-wage definition — but how that exclusion applies to a production-paid associate was not resolved by this page's research, so treat it as a question for your employment counsel rather than a loophole.

How other states handle dentist covenants — including the states that regulate them through dentist-specific statutes, where Virginia reaches your roster through the low-wage line instead — is covered in our guide to non-competes for dental staff nationally.

§ 40.1-28.7:8 carries no formula for a covenant's term, mileage or scope of activity — but two rules written into the same section decide real disputes on their own, and both apply to any covenant you put in front of anyone.

• A covenant cannot reach a patient who walks in on their own. Under the statute's definition, a covenant not to compete cannot restrict an employee from providing a service to a customer or client of the employer — a patient, in your office — if the employee does not initiate contact with or solicit that customer or client.
• A fired employee without severance cannot be bound. No covenant is enforceable if you discharge the employee without cause and without severance benefits or another monetary payment, and the severance arrangement must be disclosed when the covenant is signed. If you want a covenant to survive a termination, the cause needs to be documented or the severance needs to be real.

That is what the statute supplies.

What it does not supply is a Virginia formula for duration, geographic area or scope of activity — and this page's sources do not include a verified summary of the case-law test Virginia courts apply to an associate dentist's covenant.

Borrowing another state's numbers is not a shortcut either, because those caps are statutes specific to the states that wrote them.

Before an associate signs a term and a radius, have Virginia employment counsel check both against current case law.

The statute's initiate-contact line is already the rule any covenant language has to respect: it cannot stop an employee from serving a patient who arrives without solicitation.

Whether Virginia courts would enforce a standalone patient or staff non-solicit against a hygienist or assistant — where the non-compete itself is barred — is not answered by this page's research, so treat the drafting and enforceability of those clauses as a counsel question, and see patient and staff non-solicits for how the clauses are structured and where states allow them.

Confidentiality is the protection with a federal backbone.

Under the Defend Trade Secrets Act, information such as a patient list counts as a trade secret only if you took reasonable measures to keep it secret and it has independent economic value from not being generally known — which is why access controls and signed confidentiality terms matter more than the clause alone.

The DTSA lets the owner of a misappropriated trade secret related to a product or service in interstate commerce sue in federal court, but read its limits before leaning on it: an injunction may not prevent a person from entering into an employment relationship, and conditions on new employment must rest on evidence of threatened misappropriation, not merely on what the person knows.

• Sort your roster before you draft. The ban reaches asking someone to sign — “enter into, enforce, or threaten to enforce” — so a non-compete in an overtime-eligible hire's packet is the violation itself, not just an unenforceable clause.
• Protect staff roles with confidentiality and access controls — the patient list, the fee schedules, the lab workflows — rather than a covenant the statute bars for these roles.
• If an associate clears both lines, draft with counsel: disclose any severance arrangement when the covenant is signed, expect the initiate-contact line to be enforced against overreach, and price the $10,000-per-violation exposure honestly.
• Use the right tool for training money. If the real worry is recovering the cost of a course or credential, that is a separate instrument with its own legal limits — see our guide to training repayment agreements.
• Check licensure before day one. A covenant only matters if the person can practice — our guide to dentist licensure in Virginia covers what the state requires.
• Build the departure into the agreement itself — notice, handover of active treatment, records access — so you are not reaching for a covenant in the first week after someone leaves.