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Wax This! New York Court Finds Restrictive Covenant In Hair Removal Specialist's Employment Agreement Unreasonable and Unenforceable

On August 19, 2011, in 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.

Defendant Miranda Boci (“Boci”) was employed by plaintiff Eyes of the World (“Plaintiff”) 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.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Jonathan Sokolowski, Labor and Employment Legal Specialist, Sheppard Mullin
Associate

Jonathan Sokolowski is an associate in the Labor and Employment Practice Group in the firm's New York office.

Areas of Practice

Mr. Sokolowski's practice focuses on Labor and Employment matters, including client counseling and litigation. In particular, he has experience defending employers against single plaintiff and class action wage/hour and discrimination claims, drafting employment, severance, non-compete, and non-solicitation agreements, as well as drafting employee handbooks in compliance with state and federal law. Mr. Sokolowski also conducts...

212-634-3047
Eric Raphan, Labor and Employment Legal Specialist, Sheppard Mullin
Associate

Mr. Raphan is a partner in the firm's Labor and Employment practice group and is located in our New York Office.  

Areas of Practice

Mr. Raphan's practice encompasses a wide range of labor and employment matters, including the defense of single plaintiff and class action discrimination, wrongful discharge and wage/hour claims, in addition to employment contract, restrictive covenant, whistleblower, sexual harassment and related claims. He regularly represents clients in labor and employment litigations in federal and state courts, and in proceedings before various administrative agencies, including the Equal Employment Opportunity Commission, the U.S. Department of Labor and various state and local agencies. Mr. Raphan also represents clients in all stages of the labor election process, including election campaigns and hearings before the National Labor Relations Board.

212-634-3045