July 12, 2020

Volume X, Number 194

July 10, 2020

Subscribe to Latest Legal News and Analysis

July 09, 2020

Subscribe to Latest Legal News and Analysis

Selective Enforcement Not Viable Defense to Non-Competition Agreements Under Ohio Law

Employers sometimes worry whether seeking to enforce their non-competes in some circumstances but not others might preclude enforcement altogether in the future. Not so, says one court. Applying Ohio law, the United States District Court for the Western District of Tennessee, in GCA Services v. ParCou, held in a discovery ruling that information regarding an employer’s selective enforcement of its non-competition agreements is irrelevant to the issue of whether such agreements are enforceable.

In this case, ParCou hired several former GCA employees subject to non-competition agreements with GCA.  In response, GCA sued ParCou and the former employees, alleging violations of the non-competition agreements and unfair competition.  During discovery, ParCou requested information relating to previous attempts by GCA to enforce non-competition agreements against former employees.  GCA objected to such requests on the basis of relevance, and ParCou filed a motion to compel discovery relating to GCA’s prior enforcement of non-competition agreements.

A Magistrate Judge denied ParCou’s requests for information pertaining to its selective enforcement defense, holding that selective enforcement is not a defense to claims of violation of non-competition agreements.  In reaching that decision, the Magistrate Judge determined that the selective enforcement doctrine only applies in the context of criminal charges and civil regulatory enforcement.  The Magistrate Judge declined to extend the selective enforcement doctrine to cases involving non-competition agreements because Plaintiff failed to provide case law supporting selective enforcement as a defense in such matters.  The District Court affirmed the Magistrate Judge’s Order, and confirmed that there is no authority for the proposition that selective enforcement is viable defense in cases involving non-competition agreements. The District Court further stated that the only case offered by ParCou to support the viability of the selective enforcement defense, Petland v. Hendrix, did not reach the issue of whether selective enforcement is a viable defense, and that ParCou had provided no additional support for application of a selective enforcement defense.

The GCA decision provides support for Ohio employers to argue that selective enforcement is not a viable defense in cases involving an alleged breach of a non-competition agreement by a former employee.  As such, an employer’s business decision not to enforce a non-competition agreement against a former employee should not negatively impact its chances of having a non-competition agreement enforced at a later time against a different employee.

Jackson Lewis P.C. © 2020National Law Review, Volume VII, Number 44


About this Author

Stephen R. Beiting, Labor, Employment Attorney, Jackson Lewis Law firm

Stephen R. Beiting is an Associate in the Cleveland office of Jackson Lewis P.C. Mr. Beiting focuses his practice on employment litigation and has represented clients in matters associated with unemployment compensation, workers’ compensation claims, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Equal Employment Opportunity Commission, and the Ohio Civil Rights Commission.  Mr. Beiting also has experience drafting policy manuals and advising clients on compliance with federal and state laws.

(216) 750-0404
Vincent J. Tersigni, Jackson Lewis, Private Sector Employment Lawyer, Civil Rights Litigation Attorney

Vincent J. Tersigni is a Principal in the Cleveland, Ohio, office of Jackson Lewis P.C. Mr. Tersigni focuses exclusively on representing employers in both the public and private sectors in labor and employment law matters.

His experience includes employment discrimination, non-competition litigation, wage and hour, unemployment compensation, civil rights, union negotiations, arbitrations, union elections, State Employment Relations Board (SERB), National Labor Relations Board (NLRB), and Occupational Safety & Health Administration (OSHA) matters.

A significant part of Mr. Tersigni’s practice involves advising employers regarding compliance with state and federal employment laws, preventing labor-related disputes, whistleblower claims, and implementing effective personnel policies. He also defends employers in employment litigation before state and federal agencies.