How the Blue Pencil Doctrine Can Save Your Contract
If you’re a business owner in Ohio, you likely rely on contracts like non-competes, non-disclosure agreements (NDAs), and non-solicitation clauses to protect your business relationships and intellectual property. But if those clauses are drafted too broadly (or poorly) they may be deemed unenforceable in court. That’s where Ohio’s blue pencil doctrine comes in.
This legal rule allows courts to modify or strike out certain problematic language in a restrictive covenant without invalidating the entire agreement. It’s a powerful tool for business owners, but it only works under the right circumstances.
Let’s break down what the blue pencil doctrine is, how it applies in Ohio, and how you can use it to draft stronger, smarter contracts that hold up under scrutiny.
What Is the Blue Pencil Doctrine?
The blue pencil doctrine is a legal principle used by courts to partially enforce contracts when only a portion of the language is problematic. Rather than voiding the entire agreement, a court can “blue pencil” the offending clause, modifying it or severing it to preserve the valid remainder.
In Ohio, courts use this doctrine sparingly and only when the clause in question can be trimmed without changing the core meaning or purpose of the contract.
Example:
A non-compete that restricts a former employee from working “anywhere in the United States for five years” might be unreasonable. But a court could revise it to apply only “within a 50-mile radius for 12 months,” provided that aligns more closely with the legitimate interests of the employer.
Which Contracts Can Be “Blue-Penciled” in Ohio?
Not every contract clause is eligible for blue pencil relief. Ohio courts typically apply the doctrine in the context of:
- Non-compete agreements (restricting former employees from working for competitors)
- Non-solicitation clauses (preventing poaching of customers or employees)
- NDAs or confidentiality agreements (preserving trade secrets and sensitive business information)
- Employment agreements with restrictive duties
- Business sale agreements that include seller-side non-competes
The common thread is that these are contracts with restraints on trade—which courts scrutinize for reasonableness.
What Makes a Restrictive Covenant Enforceable in Ohio?
Ohio courts consider several factors when determining if a restrictive covenant is enforceable:
- Geographic scope: Is the restriction tied to a reasonable territory where the employer does business?
- Duration: Does the time limit match the legitimate interests being protected?
- Scope of restriction: Is the restriction narrowly tailored to the work, client relationships, or knowledge the employee actually had?
- Public policy: Does enforcing the clause unfairly limit someone’s ability to earn a living?
A clause that fails one or more of these tests may still survive if a court applies the blue pencil doctrine—but only if the defective parts can be severed cleanly.
Limits of the Blue Pencil Doctrine in Ohio
Unlike some other states, Ohio does not give courts carte blanche to rewrite contracts. Instead:
- Courts will not rewrite an agreement to reflect what it should have said.
- Courts will strike or modify overbroad clauses only when the rest of the contract stands on its own.
So while the blue pencil doctrine is helpful, it’s not a backstop for sloppy drafting.
Ohio courts also consider whether the employer acted in good faith and whether the employee had a reasonable understanding of what they were signing. If the covenant seems oppressive or was presented without negotiation, it’s more likely to be struck down entirely.
Blue Pencil in Action: A Case Study from Ohio
In Raimonde v. Van Vlerah, 42 Ohio St.2d 21 (1975), the Ohio Supreme Court confirmed the state’s version of the blue pencil doctrine. The court held that restrictive covenants can be enforced to the extent necessary to protect the employer’s legitimate interests, provided they are not greater than required and do not impose undue hardship on the employee.
Since then, courts have routinely narrowed non-compete clauses while leaving the rest of the contract intact, as long as the original agreement was reasonably constructed.
Strategic Drafting Tips for Business Owners
To ensure your contract is more likely to withstand legal challenge and benefit from the blue pencil doctrine if needed, follow these best practices:
1. Tailor Every Restriction
Use specific language tied to the employee’s role, industry norms, and your actual business interests. Avoid boilerplate “no competition anywhere, forever” language.
2. Include Severability Clauses
Always include a clause stating that if any provision is unenforceable, the remainder will still apply. This invites courts to consider modification rather than invalidation.
3. Consider “Step-Down” Clauses
These provisions offer courts a menu of progressively narrower options (e.g., one year, six months, 30 days). Courts may be more likely to enforce a lower-tier restriction than invalidate the entire clause.
4. Don’t Rely on the Blue Pencil
The doctrine is a last resort, not a drafting strategy. A well-drafted contract that anticipates scrutiny is your best protection.
How Daniel Ross & Associates LLC Can Help
We regularly help Ohio business owners draft, revise, and enforce employment agreements, NDAs, non-competes, and business sale contracts. Our approach emphasizes clear language, reasonable terms, and future-proofing.
We can help you:
- Draft enforceable restrictive covenants tailored to your business
- Add strategic fallback clauses and severability protections
- Review legacy contracts for enforceability under Ohio law
- Enforce non-competes, NDAs, and other contracts through cease-and-desist letters or litigation
- Navigate disputes with former employees, contractors, or partners
Conclusion: Preserve Your Contracts and Your Leverage
In Ohio, the blue pencil doctrine can rescue overbroad clauses in your restrictive covenants, but it’s no substitute for sound legal drafting. Courts will only step in when the core terms are reasonable, the bad parts can be cleanly removed, and your business acted fairly.
If your business depends on confidentiality, customer relationships, or specialized knowledge, don’t wait for a court challenge to find out whether your contracts will hold up.
Contact Daniel Ross & Associates today to review, revise, or reinforce your employment or business contracts so your agreements protect your business when it matters most.
