Employment Agreements · South Carolina

South Carolina presumes employment is at will absent a specific contract of employment, so a written agreement is a choice, usually reserved for executives, sales staff and trade-secret roles. Most employers must still give new hires written notice of pay terms, directly or by workplace posting (S.C. Code § 41-10-30). The South Carolina employment lawyers at Bettis Law Group draft them for employers.

By Bettis Law Group, LLP · Columbia, South Carolina

Which Employees Need a Written Employment Agreement?

Many employees need only an offer letter confirming at-will status and pay terms. A full agreement fits roles with something specific to secure: executives and senior managers (compensation, equity, severance), sales employees with customer relationships (commissions, non-solicitation), and employees with access to trade secrets (confidentiality, return of property, assignment of work product).

If employment is to stay at will, say so in the offer letter, and do not promise a fixed term or termination only for “cause” unless that is the deal. Our guide to at-will employment in South Carolina explains how at-will status interacts with § 41-1-110, the statute on disclaimers in handbooks and other employer documents.

The Terms That Matter Most

Compensation, Bonuses and Commissions

The South Carolina Payment of Wages Act requires employers to notify each employee in writing at hiring of the normal hours and wages agreed upon, the time and place of payment, and the deductions to be made; conspicuous posting at or near the workplace also satisfies it. Changes must be made in writing at least seven calendar days before they take effect, and the section does not apply to wage increases (S.C. Code § 41-10-30(A)). Employers with fewer than five employees at all times during the preceding twelve months, and employers of domestic labor in private homes, are exempt from that section (§ 41-10-20).

The Act’s “wages” include commissions and the vacation, holiday and sick-leave pay due under an employer policy or employment contract (§ 41-10-10), and no private agreement can set the Act aside (§ 41-10-100). So state when a commission or bonus is earned, whether a bonus is discretionary, and what happens at separation. Our guide to final paychecks in South Carolina covers the timing and treble-damages rules.

Confidentiality and Trade Secrets

Under the South Carolina Trade Secrets Act, an employee who knows or should reasonably know of an employer’s trade secret has a duty not to use or disclose it without permission, independently of any written agreement (S.C. Code § 39-8-30(B)), and a contractual duty not to disclose a trade secret is not void for lacking a time or geographic limit (§ 39-8-30(D)). A trade secret must also be the subject of reasonable efforts to keep it secret (§ 39-8-20(5)(a)), so define the information covered rather than everything the employee learns. Three federal rules also apply:

  • The immunity notice. An agreement governing an employee’s use of trade secrets or other confidential information must give notice of the federal whistleblower immunity, directly or by cross-reference to a reporting-policy document given to the employee; otherwise the employer may not recover exemplary damages or attorney fees under the Defend Trade Secrets Act against that employee (18 U.S.C. § 1833(b)(3)).
  • The Speak Out Act. A nondisclosure or nondisparagement clause agreed to before a sexual assault or sexual harassment dispute arises is not judicially enforceable in that dispute when the conduct is alleged to violate federal, tribal or state law (42 U.S.C. § 19403(a)).
  • The National Labor Relations Act. For employees the Act covers (supervisors are excluded), keep confidentiality and nondisparagement terms narrow. On September 30, 2026, the NLRB found an employer violated the Act by prohibiting an employee from sharing her Employment Security Agreement (Beatrice Loving Heart and Healthcare Agency, 375 NLRB No. 56), and in April 2026, applying McLaren Macomb (2023), it found that severance agreements with overly broad nondisparagement and confidentiality provisions violated the Act, though two members signaled openness to revisiting it (Prime Communications, LP, 374 NLRB No. 88).

Non-Competition and Non-Solicitation Covenants

South Carolina courts treat a covenant not to compete as disfavored and construe it strictly against the employer. It is enforceable only if it is necessary to protect the employer’s legitimate interest, reasonably limited in time and place, not unduly harsh and oppressive in curtailing the employee’s legitimate efforts to earn a livelihood, reasonable from the standpoint of sound public policy, and supported by valuable consideration (Rental Uniform Service of Florence, Inc. v. Dudley, 1983). In practice:

  • Sign it at hire. At the start of employment, the at-will job itself can be the consideration; for a covenant entered into after the inception of employment, separate consideration beyond continued at-will employment is necessary (Poole v. Incentives Unlimited, Inc., 2001).
  • Draft every term within the limits; courts here do not blue-pencil. Restrictions “cannot be rewritten by a court or limited by the parties’ agreement, but must stand or fall on their own terms” (Poynter Investments, Inc. v. Century Builders of Piedmont, Inc., 2010), so do not count on severability or step-down language to save an overbroad covenant.
  • Fit it to the role. A territory is generally reasonable when limited to where the employee could establish contact with the employer’s customers (Dudley), and a tailored customer non-solicitation clause is generally easier to enforce than a broad non-compete.

Our guide, Are Non-Competes Still Enforceable in South Carolina?, covers enforceability in full.

A federal court set aside the FTC’s 2024 non-compete rule on August 20, 2024, before it could take effect (Ryan, LLC v. FTC); on September 5, 2025, the Commission voted 3-1 to dismiss its appeals and accede to the vacatur; and a final rule removed it from the Code of Federal Regulations effective February 12, 2026 (91 FR 6507). The FTC still pursues individual cases, such as its June 2026 Rollins Inc. consent order.

Our restrictive covenant attorneys draft, review and enforce non-competes and non-solicitation covenants for South Carolina employers.

Arbitration and Jury-Waiver Clauses

South Carolina’s Uniform Arbitration Act does not apply to an arbitration agreement between employers and employees unless the agreement provides that it applies, and an agreement to apply it may not be made a condition of employment (S.C. Code § 15-48-10(b)(2)). The Federal Arbitration Act makes a written arbitration provision in a contract involving interstate commerce “valid, irrevocable, and enforceable,” save on grounds that would revoke any contract (9 U.S.C. § 2).

The federal Act does not reach contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce (9 U.S.C. § 1), and at the election of a person alleging a sexual harassment or sexual assault dispute, a predispute arbitration agreement or joint-action waiver is not valid or enforceable for a case relating to that dispute (§ 402(a)). A jury-trial waiver is a separate clause; draft and review it on its own terms.

Severance and Release Terms

When an employer covered by the federal Age Discrimination in Employment Act (private employers with 20 or more employees) asks a worker 40 or older to release age claims, the Older Workers Benefit Protection Act’s rules apply: the waiver must be knowing and voluntary. At a minimum, it must be written in a manner calculated to be understood, refer specifically to ADEA rights or claims, not waive claims arising after signing, rest on consideration beyond anything the employee is already entitled to, and advise the employee in writing to consult an attorney. The employee must have at least 21 days to consider it (45 days, with written disclosures, for an exit incentive or other termination program offered to a group or class of employees) and at least 7 days after signing to revoke (29 U.S.C. § 626(f)(1)). No waiver may be used to interfere with the right to file an EEOC charge or take part in an EEOC investigation (§ 626(f)(4)).

Pay final wages on the Payment of Wages Act schedule whether or not the employee signs (§§ 41-10-50, 41-10-100).

What Drives the Cost of Drafting Employment Agreements?

Scope drives the cost:

  • Roles and templates. One offer letter and one executive agreement is less work than separate agreements for each job family.
  • Covenants. Each covenant should be fitted to its role, since courts here will not rewrite an overbroad one.
  • Compensation design. Commission, bonus and equity terms need precise earning and separation rules.
  • States. Covenant rules vary; Minnesota, for example, voids employee non-competes in agreements made on or after July 1, 2023, with narrow exceptions (Minn. Stat. § 181.988), so a multi-state workforce may need state-specific versions.
  • Negotiation. Executives often negotiate through their own counsel, adding rounds.
  • Rollouts and group programs. New covenants for current staff need separate consideration, and group severance programs need the ADEA’s 45-day period and written disclosures.

Frequently Asked Questions

Does South Carolina require a written employment agreement? No general rule does; South Carolina presumes employment is at will absent a specific contract of employment. Most employers must still give new hires written notice of pay terms, directly or by workplace posting (S.C. Code § 41-10-30).

Can we ask a current employee to sign a new non-compete? Yes, but a covenant entered into after the inception of employment needs separate consideration in addition to continued at-will employment (Poole v. Incentives Unlimited, Inc., 2001). Provide something new, and document what was given and when.

How long must an employee 40 or older have to review a severance agreement? To release age claims under the ADEA, at least 21 days to consider it (45 days in an exit incentive or other termination program offered to a group or class of employees) and at least 7 days after signing to revoke (29 U.S.C. § 626(f)).

Can a small business use a template employment agreement? It can start from one, but have it checked against South Carolina law first: a covenant written for a state whose courts trim overbroad restrictions gets no such treatment here.

What drives the cost of having employment agreements drafted? Scope: the roles and templates involved, covenant tailoring, pay-plan complexity, the states where employees work, negotiation, and any rollout to current employees.

Request an Appointment with a South Carolina Employment Lawyer at Bettis Law Group

For new agreements, a covenant rollout or a severance program, the South Carolina employment lawyers at Bettis Law Group can help. To speak with a South Carolina employment lawyer in confidence, call (803) 799-9311 or request an appointment online. Learn more about our employment law practice for employers.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Federal and South Carolina employment laws change, agencies update their rules, and every situation turns on its specific facts. Consult a licensed South Carolina employment attorney about your business’s situation.