Non-Disparagement Clauses in Ohio: Are They Enforceable?
Ohio courts generally uphold non-disparagement clauses as valid contractual provisions when they are supported by adequate consideration and are reasonable in scope. Ohio takes a traditional contract-law approach to these restrictions.
Ohio's Legal Approach
Ohio does not have a specific statute governing non-disparagement clauses in employment or commercial agreements. Courts analyze these clauses under standard contract principles found in Ohio common law. The Ohio Supreme Court's framework for restrictive covenants, as established in Raimonde v. Van Vlerah (325 N.E.2d 544), emphasizes reasonableness as the central test.
Under the Raimonde framework, Ohio courts may modify an unreasonable restrictive covenant to make it enforceable rather than voiding it entirely. This "blue pencil" approach means courts can narrow an overbroad non-disparagement clause to a reasonable scope.
Enforceability Factors
- Consideration: Ohio courts require adequate consideration. In the employment context, for at-will employees, courts have sometimes accepted continued employment as sufficient consideration when the clause is signed at the beginning of employment. Post-hire clauses may need additional consideration.
- Reasonableness of scope: Courts weigh whether the restriction is broader than necessary to protect the legitimate interests of the party seeking enforcement.
- Blue pencil doctrine: Ohio courts can reform overbroad clauses rather than striking them entirely, which means even imperfect clauses may survive in a modified form.
- Legitimate business interest: The clause should protect something tangible like business reputation, trade secrets, or customer relationships.
Red Flags
- Extremely broad definitions that cover any negative opinion, even truthful ones
- No time limitation on the restriction
- No exception for communications with government agencies or in legal proceedings
- Penalties disproportionate to any conceivable harm from a disparaging statement
When to Consult a Lawyer
If you are negotiating an employment or severance agreement in Ohio that includes a non-disparagement clause, consider having an Ohio attorney review it. Ohio's blue pencil approach means even a poorly drafted clause may be partially enforceable.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.