Restrictive Covenant

Although Restrictive Covenants (non-compete clause; anti-competition covenant) are not allowed within the legal profession, lawyers will gladly litigate these attempts to maintain practice exclusivity which, more often than not, are part of contracts among health care professionals!

A noncompetition covenant is reasonable if the restraint:

1. is no greater than is required for the protection of the employer,
2. does not impose undue hardship on the employee, and
3. is not injurious to the public.
   Raimonde V. VanVlerah (1975), 42 Ohio St. 2d 21, 26.

There are nine factors to be considered in determining reasonableness.

1. Whether the duration of the agreement and the area covered are reasonable.
2. Whether the employee possesses confidential information or trade secrets.
3. Whether the employee is the sole contact with the customer.
4. Whether the covenant's purpose is to eliminate unfair competition or merely ordinary competition.
5. Whether the covenant seeks to stifle the inherent skill and experience of the employee.
6. Whether the employee learned his or her skill during the employment or before employment.
7. Whether the covenant bars the employee's sole means of support.
8. Whether the benefit to the employer is disproportional to the detriment of the employee.
9. Whether the forbidden employment is incidental to the main employment.

The enforceability of a covenant not to compete does not depend on whether the employee voluntarily terminates his employment or is discharged by the employer.

Basically, non-compete clauses violate the policy of The State of Ohio against agreements in restraint of trade.

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