Couch v. Administrative Committee of Difco Laboratories Inc. Salaried Emp. Profit Sharing Trust

• Decision Date: 06 December 1972
• Docket Number: No. 1,Docket No. 11757,1
• Citation: 44 Mich.App. 44,205 N.W.2d 24
• Parties: Frank R. COUCH, Plaintiff-Appellee, v. ADMINISTRATIVE COMMITTEE OF the DIFCO LABORATORIES INCORPORATED SALARIED EMPLOYEES PROFIT SHARING TRUST, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 24

205 N.W.2d 24

44 Mich.App. 44

Frank R. COUCH, Plaintiff-Appellee, v. ADMINISTRATIVE COMMITTEE OF the DIFCO LABORATORIES INCORPORATED SALARIED EMPLOYEES PROFIT SHARING TRUST, Defendant-Appellant.

Docket No. 11757.

Court of Appeals of Michigan, Division No. 1.

Dec. 6, 1972.

Released for Publication March 20, 1973.

Leonard J. Prekel, Morris, Stark, Rowland, Regan, Reagan & Prekel, Detroit, for defendant-appellant.

H. Keith Miller, Detroit, for plaintiff-appellee.

Before LEVIN, P.J, and V. J. BRENNAN and VanVALKENBURG, ^* JJ.

LEVIN, Judge.

The Administrative Committee of the Difco Laboratories Incorporated Salaried Employees Profit Sharing Trust appeals from a partial summary judgment in favor of the plaintiff, Frank R. Couch. ¹

Couch was hired by Difco as a salaried employee in 1959. In January, 1962 Difco established a salaried employees' profit sharing plan. In 1969 Couch chose to terminate his employment with Difco and became an employee of Metrix Clinical and Diagnostics Division of Armour Pharmaceutical Company.

Couch was a participant in the profit sharing plan and the value of his interest in the plan as of December 31, 1968, was $17,918.78. He claims that upon termination of his employment he was entitled to receive 50% Of that amount.

After Couch's employment terminated he was informed by the administrative committee that his interest in the profit sharing plan had been forfeited because Metrix is a competitor of Difco and the plan provides that a participant shall forfeit any and all payments due or to become due under the plan if he is employed by a competitor within one year of the termination of his employment with Difco.

In entering a partial summary judgment in favor of Couch, the trial judge ruled that the benefits accruing under the plan 'constituted part of the salary of the plaintiff * * * and gave rise to an enforceable contract'. He further ruled that the 'noncompetition clause' was void because it violates the following statutory provision:

'All agreements and contracts by which any person, co-partnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited, are hereby declared to be against public policy and illegal and void.' M.C.L.A. § 445.761; M.S.A. § 28.61.

We agree with the judge that, even though the establishment of the plan was a voluntary act on the part of Difco and it made all the contributions to the trust established under the plan, Couch enjoyed enforceable rights under the plan. We disagree, however, with the judge's conclusion that the provision providing for forfeiture of benefits if a terminated employee becomes an employee of a competitor violates the statutory prohibition of agreements to refrain from particular employment or business. Accordingly, we reverse and remand for such further proceedings as may be appropriate. ² By establishing the profit sharing plan Difco offered to make certain payments for the benefit of its salaried employees who continued to render services to Difco. Couch, by performing the desired services, accepted that offer and, therefore, has enforceable rights under the plan. ³ Those enforceable rights are, however, subject to the valid provisions of the plan.

Couch cites our decision in Mackie v. State Farm Mutual Automobile Insurance Co., 13 Mich.App. 556, 164 N.W.2d 777 (1968), in support of his contention that the noncompetition provision is invalid. Mackie was an insurance salesman. His insurance company employer had agreed that upon termination of his employment he would receive a percentage of his local agency annual earnings provided that he 'has agreed in writing not to service policyholders of the company or to compete with the company or interfere with its business for one full year from the date of termination'. We ruled that this condition requiring an agreement not to compete was an illegal condition subsequent which did not disturb already vested rights of the insurance salesman.

In this case, in contrast with Mackie, Couch has neither entered into an agreement nor agreed to enter into an agreement that he will not compete with Difco. Even if Metrix is a competitor of Difco, Couch breached no agreement, either with Difco or under the terms of the profit sharing plan, by going to work for Metrix.

We recognize that the practical effect of the forfeiture provision is to discourage a Difco employee who has built an equity under the profit sharing plan from leaving Difco and seeking other employment. No doubt, that is the purpose of the forefiture provision.

There is, however, a significant difference between an absolute prohibition upon a former employee accepting competitive employment ⁴ and penalizing him if he does. An agreement barring other employment, if enforceable, might disable a former employee from earning a living at what is perhaps the only occupation for which he is qualified. The penalty imposed on Couch has no such immediate and overwhelming impact.

The Legislature has chosen to bar only agreements which prevent an employee from engaging in other employment. It has not barred any restraint upon seeking other employment. ⁵ Nor has it, despite public discussion of forfeitures under private sector retirement plans, declared a public policy against enforcement of such clauses.

In Rochester Corp. v. Rochester, 450 F.2d 118, 122--123 (C.A.4, 1971), the United States Court of Appeals for the Fourth Circuit stated that the authorities generally draw a distinction between a restraint on competitive employment under an employment contract and such a restraint under a retirement plan:

'The strong weight of authority holds that forfeitures for engaging in subsequent competitive employment, included in pension retirement plans, are valid, even though unrestricted in time or geography. The reasoning behind this conclusion is that the forfeiture, unlike the restraint included in the employment contract, is not a prohibition on the employee's engaging in competitive work but is merely a denial of the right to participate in the retirement plan if he does so engage.' ⁶

Just as an employee...