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The Make-Up Bar v. Cooper, Levenson, April, Niedelman & Wagenheim, P.A.

A-3842-04T2 (N.J. Super. App. Div. 2006) (Unpublished)

EMPLOYER-EMPLOYEE; NON-COMPETITION—A no-hire agreement is different from a non-solicitation agreement and a no-hire agreement may be violative of New Jersey’s public policy.

A hairdresser hired an attorney to prepare a “no-hire” agreement for another hairdresser she agreed to hire for a short time period until he opened his own salon. She had requested a “no-hire” agreement that would have prohibited the new, temporary employee from hiring away any of her employees after he opened a new salon. Instead, her attorney prepared a “non-solicitation” agreement which prohibited the employee from soliciting any of her other employees, but did not prohibit him from hiring them if they came to him independently. When the employee left and hired some of the hairdresser’s employees, she sued for an injunction which was denied. She then sued her attorneys for malpractice for drafting a “non-solicitation” agreement as opposed to the “no-hire” agreement she requested. The attorneys argued that they could not be held liable for drafting the wrong type of contract, because even if they had drafted a “no-hire” contract, it would have been unenforceable in New Jersey as against public policy. The attorneys also argued that they were not the proximate cause of the hairdresser’s losses because the employee asserted that he would not have signed a “no-hire” agreement. The attorneys moved for summary judgment, asking for dismissal of the hairdresser’s complaint, which was granted. The hairdresser appealed. She claimed that summary judgment was inappropriate because there were material issues of fact in dispute. In particular, the hairdresser claimed that she was never informed that a “no-hire” agreement was unenforceable, and that had she been told that it would be unenforceable, she never would have hired the employee since she knew he was going to leave in a short time. She argued that she would not have hired him specifically to prevent her other employees from being hired away by the new salon. Further, she contradicted the employee’s assertion that he would not have agreed to sign a “no-hire” agreement. The Appellate Division agreed that the hairdresser raised sufficient material facts in dispute and that summary judgment was therefore inappropriate.

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