Photo: Darren Baker/iStockphoto.com Photo: Darren Baker/iStockphoto.com

A noncompete clause barring a fired masseuse from taking a new job at a nearby location cannot be enforced, a New Jersey judge has ruled.

Bergen County Superior Court Judge Charles Powers on Feb. 27 ruled that the noncompete clause was unduly burdensome on the plaintiff, Olga Abuaysha, and should not be used to bar her from accepting the new job.

“A post-employment restrictive covenant will only be found to be reasonable when it protects the ‘legitimate’ rights of the employer, imposes no hardship on the employee and is not injurious to the public,” Powers said in Abuaysha v. Shapiro Spa.

According to the decision, Abuaysha began working at the Woodhouse Spa in Red Bank, owned by defendant Alla Shapiro, in June 2012. At the time, she signed an employment agreement containing a provision that, in the event she left, she would accept no job within five miles of the spa’s location for a minimum of two years.

On Sept. 23, 2017, Abuaysha performed an 80-minute massage on a client. Shortly thereafter, the client went to another employee for a facial. Abuaysha overheard the client tell the other employee that she had a rash on her face and that she was taking medication. The client said she feared she had shingles, but had been prescribed medication for a sinus infection, Powers wrote.

Abuaysha, citing medical concerns, declined to take any other clients that day, and left. She did not return until three days later, at which time the manager, Joanne McCabe, told Abuasyha she needed to provide a doctor’s note. When Abuaysha could not provide one, she was fired, according to the decision.

Almost immediately, Abuaysha obtained a job offer from an alternative medicine provider, Dr. Sue Massie, at an office within walking distance of Woodhouse Spa.

At that point, Woodhouse moved to enforce the noncompete clause, and Abuaysha filed a complaint in Bergen County, where Shapiro lives.

Powers granted Abuaysha’s motion for temporary restraints Feb. 8, and, after oral arguments, denied the defendants’ motion to vacate the temporary restraints.

In his Feb. 27 opinion, Powers ruled that the noncompete clause could be enforced only if the ex-employer faced harm that was “imminent and irreparable,” and found that Abuaysha’s hardships outweigh the defendants’.

“Defendants have not made a showing that the non-compete clause is narrowly tailored to ensure the clause is no broader than necessary to protect their interests,” Powers wrote.

“Although this is an important interest, a complete bar on competition is unnecessary to protect their client relationships,” and a “ban on solicitation” would instead suffice, the judge added.

One of Abuaysha’s attorneys, Christopher Eibeler, said the ruling was an important one, even though it is unreported.

“These clauses are not uncommon,” said Eibeler, of Smith Eibeler in Holmdel. “When she was fired, she should not have been bound by the noncompete clause.”

The spa’s attorney, Sandra Jimenez of Florham Park’s Gordon Reese Scully Mansukhani, did not return a call seeking comment.