Contracts

Contracts play a central role in employment law. The most basic employment arrangement, at-will employment, is purely contractual in nature. Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 530-531, 23 O.O. 20, 41 N.E.2d 393. The employee agrees to perform work under the direction and control of the employer, and the employer agrees to pay the employee at an agreed rate. When the employment relationship ends, the employee will provides no further services for the employer and is generally entitled only to wages and benefits already earned.

Contract law also lays the foundation for non-competition cases and arbitration agreements. Employees can attack non-compete and arbiration agreements on contract formation grounds and with contract defenses.  Courts normally will not police an agreement for fairness. However, most courts have the discretion not enforce certain non-competition and arbitration terms. In those events, the courts modify or sever the offending term before enforcing the agreement.

On top of contract rights, the employment relationship is subject to statutory and common law rules that set minimum compensation and maximum hours and prevent employers from terminating employees for unlawful reasons.

Elements of a Breach of Contract Claim

To prove a breach of contract claim, an employee must prove:

  1. the existence of a contract, 
  2. performance by the employee, 
  3. breach by the employer, and 
  4. damage or loss to the employee. 

Firelands Regional Med. Ctr. v. Jeavons, 6th Dist. No. No. E-07-068, 2008 Ohio 5031, P 19. 

To assert a claim that a contract existed, party claiming the breach must allege facts showing:

  1. an offer,
  2. an acceptance, 
  3. a meeting of the minds and 
  4. consideration. 

Siemaszko v. FirstEnergy Operating Co. (FENOC), 187 Ohio App. 3d 437, 444 (Ohio Ct. App., Ottawa County 2010) (employee's promise to cooperate in a joint defense against claims brought against both the employer and the employee provided enough consideration to enforce the employer's promise to pay the employee's legal fees (citing Kostelnik v. Helper, 96 Ohio St.3d 1, reconsideration denied (2002), 96 Ohio St. 3d 1489).

Common Contract Terms

  • Compensation. The amount that the employer will pay the employee for services is the most basic employment contract term. The parties are free to agree on any compensation agreement, so long as the employer pays the applicable minimum wage and overtime, does not discriminate based on gender, race and other protected class status and pays males and females equally for equal work.
  • Duration. Unless the parties agree to a specific duration, the agreement is at-will, meaning either party can terminate it at any time.
  • Non-disclosure. Non-disclosure agreements mimic the Uniform Trade Secrets Act's protection of employer proprietary information. However, an employer might demand even greater protections. 
  • Non-competition. Courts will enforce reasonable restrictions on an employee's post employment competition, but will not enforce non-competition terms that place greater restrictions on an employee than is necessary to protect the employer's legitimate business interest. 
  • Mandatory Arbtiration. The Agreement must be in writing, however, and is subject to judicial restrictions on enforcement.
  • Severance.
  • Grounds for Termination. If the agreement is silent, the employer may terminate the employee for no reason and without just cause. However, the employer cannot terminate the employee for reasons prohibited by law, such as discrimination or retaliation.

Consideration

Consideration is the bargained-for legal benefit or detriment.  Without it, parties do not form a contract.  This is important in non-competition cases involving at-will employees, where the employee can escape a non-competition agreement if the employer did not provide any consideration for it.  State courts are divided as to whether an additional day of at-will employment provides sufficient consideration for a non-competition agreement.

One Michigan court observed that, because an employer gave an at-will employee nothing new for a non-compete signed three weeks after her at-will employment began, the "purported consideration for (the employee's non-compete agreement) appears to run afoul of the pre-existing duty rule." Krause & C. v. Schmidt, 2006 Mich. App. App. LEXIS 2052 (Mich. Ct. App. June 27, 2006
 (citing Yerkovich v. AAA, 461 Mich. 732, 740-741 (Mich. 2000).  Another Michigan court, however, reached the opposite conclusion. QIS, Inc. v. Indus. Quality Control, Inc., 262 Mich. App. 592, 594 (Mich. Ct. App. 2004)(Mere continuation of employment is sufficient consideration to support a noncompete agreement in an at-will employment setting).

"Illinois courts require employers to pay “adequate” or “sufficient” consideration to form a non-compete. McRand, Inc. v. Van Beelen, 138 Ill. App. 3d 1045, 1055 (Ill. App. Ct. 1st Dist. 1985).  Illinois employers can deliver adequate, sufficient consideration in the form of continued at-will employment, but only if the employment relationship continues for a substantial period of time. Id.

Many other states, including Ohio, Indiana, and Florida, treat continued at-will employment as sufficient consideration to create a valid agreement. In Ohio, each day of at-will employment is fresh consideration for a non-competition agreement. Lake Land Empl. Group of Akron, LLC v. Columber, 101 Ohio St. 3d 242 (Ohio 2004). The Ohio Supreme Court reasoned that an employer’s forbearance from ending the employee’s employment provides enough consideration to create a valid agreement.

Articles (20)

Implied Contract exception to Employment at-Will
In general, under the employment-at-will doctrine, the employment relationship between employer and employee is terminable at the will of either. See At-will Employment . Even so, some state supreme c... applies to All States

Enforcing Non-competition Agreements after the Sale of a Business
If an employer with non-competition agreements sells its business to a new buyer, the buyer does not necessarily acquire the old employer's/seller's rights in its non-competition agreements. The buyer... applies to All States

Overview of American At-will Employment
American employment law is built on the foundation of at-will employment. Before any meaningful body of employment law existed, employment in America was at-will. Based in state contract law, at-will ... applies to All States

California Non-competition Law
At one time California courts enforced contractual restraints on competition as long as they were reasonably imposed. However, in 1872 California adopted a public policy favoring open competition and ... applies to California

Choice of Law in Non-compete Cases
Non-compete laws vary significantly from state to state. California law favors employees, while Ohio law recognizes and protects most employer interests. Thus, the law that a court chooses to apply to... applies to All States

Rescinding Non-compete Agreements after the Employer's Breach
Some states will not enforce a non-compete clause if the party seeking enforcement previously breached a material provision of the contract containing the covenant not to compete. The breach must be m... applies to All States

Executive Orders affecting Unions issued by the Obama Administration.
President Barack Obama signed a series of executive orders in his first month in office favorable to organized labor. They include: Notification of employee rights under federal labor laws ; Economy i... applies to All States

The Role of Contracts in Employment Law
Contracts play a central role in employment law. The most basic employment arrangement, at-will employment, is purely contractual in nature. Floyd v. DuBois Soap Co. (1942), 139 Ohio St. 520, 530-531,... applies to All States

Wrongful Discharge - Terminations that Violate Public Policy
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Ohio Physicians and Doctor non-competition agreements
Non-competition agreements are generally disfavored in the medical profession, but they are not per se unenforceable. Ohio Urology, Inc. v. Poll (1991), 72 Ohio App.3d 446, 451; General Med., P.C. v. ... applies to Ohio

Vacation Pay Rights in Ohio at time of Termination
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New York Non-competition Law
New York state courts enforce post-employment non-competition agreements under certain circumstances, but their examination of restrictive covenants is rigorous. New York courts adhere to a strict app... applies to New York

Non-competition Agreements in Ohio - History and Law
History of non-competition agreements in Ohio As in other states, Ohio courts at one time viewed noncompetition agreements with some skepticism. Agreements in restraint of trade, including noncompetit... applies to Ohio

Tortious Interference Involving Non-Competition Agreements
In most states, a third party cannot interfere with the contractual or prospective business relationships between two other parties, absent a proper purpose. This claim is known as “tortious interfe... applies to All States

Michigan Non-competition Agreement Law
The Michigan Antitrust Reform Act generally prohibits any "contract, combination, or conspiracy between 2 or more persons in restraint of, or to monopolize, trade or commerce." Mich. Comp. Laws § 445... applies to Michigan

Enforcability of Texas Non-competition Agreements.
To be enforceable under Texas law, a non-compete must be: ancillary to or part of an otherwise enforceable agreement at the time the agreement is made; to the extent it contains limitations as to time... applies to Texas

Indiana Non-competition Law
Indiana courts disfavor covenants not to compete, which they view as in restraint of trade. Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co. 492 N.E.2d 686 (Ind. 1986). Indiana courts strictly constr... applies to Indiana

Virginia Non-competition Law
Restrictive covenants are disfavored in Virginia as restraints on trade. Virginia courts will enforce restraints in non-competes only if the restraint is: reasonable in that it is no greater than nece... applies to Virginia

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