Environmental Products Co. v. Duncan

Neely, J.

dissenting-.

When he began work for Environmental Products Company Inc. in the spring of 1978, Danny Duncan was an entry level employee. As such he could have lost his employment at the will of his employer at any time without notice. By all indications he progressed satisfactorily and received two raises within his first year of employment. Pleased with his performance his employer offered him a contract which, while it placed some restraints on him, gave him another week’s vacation, guaranteed him a bonus, and provided thirty days notice before termination.

I perceive the above chronology to reflect a logical process of employee hiring, training and retention. Before *353the signing of the contract, Environmental Products quite rightly viewed Mr. Duncan as a novice with whom the company might or might not wish to enter into an employment contract, depending on his development. Had Mr. Duncan either quit during the training or been discharged because of poor performance there would have been no restrictions on his subsequent employment. But upon an employee’s successfully completing the training and being promoted from a cub salesman to a full salesman, it was the policy of Environmental Products to enter into a contract with the employee which contract included the covenant not to compete.

The majority has assailed this altogether logical process. The majority concluded that when a covenant not to compete is contracted after employment has been commenced without such a covenant, there must be new consideration to support it. Unfortunately, the majority has relied upon Pemco Corp. v. Rose, 163 W. Va. 420, 257 S.E.2d 885 (1979), to sustain its position. Pemco turned on this Court’s determination that a contract of employment was in effect prior to the actual signing of the contract which included the covenant not to compete. Given that finding, the result in Pemco is sound. However, in the case before us today there was no prior contract of employment between Duncan and Environmental Products. Hence, Pemco does not apply, and the covenant not to compete cannot be interpreted as an additional condition to an existing contract. Even if the facts would sustain a finding of a prior contract in this case, I nevertheless feel that the granting of an extra week’s paid vacation, the guaranteeing of a yearly bonus, and the provision for notice of termination constitutes sufficient further consideration.

Accordingly I dissent from the majority’s threshold analysis of whether the covenant not to compete either needed to be or actually was supported by additional consideration. Whether the geographical area covered by the covenant was unreasonable is a different question, but if it were unreasonable the proper action for a lower court would be to narrow the geographical boundaries to reasonable limits.