In a recent decision outside the Commercial Division, Eyes of the World v. Boci, No. CV 46549/09 (N.Y. Civ. Ct. Aug. 19, 2011), Judge Margaret A. Chan held that a former employee's restrictive covenant, prohibiting her from providing salon services to any client of her former employer for whom she provided such services during the last 12 months of her employment, was overly broad and, thus, unenforceable.
Plaintiff Eyes of the World ("Plaintiff") employed
Defendant Miranda Boci ("Boci") to perform hair removal
services until she resigned in early 2009 to work for NYC Waxing,
LLC ("NYC Waxing"). Boci's employment agreement with
Plaintiff contained a 1-year restrictive covenant which barred Boci
from providing "Salon Services" in New York City to any
of Plaintiff's clients for whom Boci provided such services
during her last year of employment with Plaintiff. Plaintiff
commenced the instant action against Boci and NYC Waxing alleging
that that Boci breached her post-employment obligations to
Plaintiff by servicing eighty-six of Plaintiff's former clients
once she began working for NYC Waxing.
Judge Chan reiterated that Boci's restrictive covenant must be
reasonable in temporal and geographic scope and then will be
enforced only: (a) to the extent necessary to protect Plaintiff
from unfair competition which stems from the Boci's use or
disclosure of trade secrets or confidential customer lists; or (b)
if Boci's services are unique or extraordinary. Judge Chan
first concluded that Boci did not have access to trade secrets,
client lists, or any other of Plaintiff's proprietary
information and, thus, the enforcement of the restrictive covenant
was not necessary to protect Plaintiff from unfair competition by
Boci or NYC Waxing. Judge Chan then held that despite Boci's
training, her job and the skills used for that job are not legally
considered unique or extraordinary. Judge Chan further noted that
the clients at issue opted to follow Boci to her new employer based
upon their needs and her ability and not as a result of any
unlawful conduct by Boci or NYC Waxing. Based upon these facts,
Judge Chan dismissed Plaintiff's complaint.
Judge Chan's decision should serve as an important reminder to
employers that drafting an enforceable restrictive covenant goes
beyond simply ensuring that such covenant is reasonable in temporal
and geographic scope. Employers must also keep in mind that in
order for the covenant to be enforceable, it must be drafted to
protect the employer's legitimate business interests.
Otherwise, an employer may find that, like Plaintiff in this case,
its restrictive covenant is overly broad and, thus,
unenforceable.
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