Kevin M. Passerini and Oliver R. Katz
Pennsylvania law has long required that a restrictive covenant agreement be signed prior to or at the start of employment for it to be enforceable. By extension, Pennsylvania law has also required consideration beyond continued employment—a promotion, bonuses or stock options, severance, or other meaningful consideration—to support a restrictive covenant agreement with an existing employee. Those requirements left a somewhat gray area where a newly hired employee (or an internal employee elevated to a new position) does not sign a restrictive covenant agreement until shortly after starting in the new role and does so without receiving any consideration distinct from the new employment position itself.
In its June 16, 2020 decision in Rullex Co., LLC v. Tel-Stream, Inc., 27 EAP 2019 (Pa. 2020), the Pennsylvania Supreme Court waded into that gray area to consider whether new or “fresh” consideration must be provided any time a restrictive covenant agreement is executed after an employee’s first day in a new role. The court rejected the exclusive use of a bright-line rule requiring execution at or prior to the commencement of employment. Instead, relying in part on a decision from 50 years ago, it left the door slightly open so that restrictive covenants signed after employment has already commenced may be enforced where there was a meeting of the minds on the substance of the restrictive covenants at or prior to the start of employment. As the court noted, the critical inquiry is whether the parties had agreed to the “essential provisions” when the relationship began, such that the restrictive covenant agreement was ancillary to the taking of employment, or whether there was no meeting of the minds such that the restrictive covenants were a “belated addition” to their relationship, requiring additional consideration. In applying its standard to the facts of the case, the court held that there was no meeting of the minds at the start of the relationship based on the delay of at least two months before the signing of the agreement and Rullex’s willingness to consider and accommodate revisions to the original draft.
With the clarity provided in Rullex, employers likely cannot rely on the mere circulation of a restrictive covenant agreement prior to the start of a new employment position to ensure its enforceability. And employers must also be wary of continued negotiations with prospective employees (or existing employees who are candidates for promotions) after having presented an agreement containing restrictive covenants.
Going forward, the most obvious (and best) way to avoid a dispute over whether the parties had a “meeting of the minds” is to have a restrictive covenant agreement signed before a new employee commences work in the new role and before an existing employee assumes a new role within the company. Another good option is for an employer to attach the restrictive covenant agreement to an offer letter that conditions employment (or any promotion or other new position) on the execution of the agreement and to require the individual to sign that offer letter in advance of starting in the new position with an acknowledgment that he or she has received and reviewed the agreement and accepted all of the terms of the offer. Anything less is likely to leave employers in the gray area, fighting it out in court or in arbitration.