specially concurring:
Unlike my colleagues in the majority, I find the Wisconsin Supreme Court’s decision in Heyde Cos. v. Dove Healthcare, LLC, 258 Wis. 2d 28, 654 N.W.2d 830 (2002), to be a better reasoned decision than the Virginia Supreme Court’s decision in Therapy Services, Inc. v. Crystal City Nursing Center, Inc., 239 Va. 385, 389 S.E.2d 710 (1990). Nevertheless, because of an important distinction between Heyde and the case before us, I feel constrained to concur in the majority’s judgment.
Heyde held that a no-hire provision agreed to by employers that restricts the employment opportunities of employees without their knowledge and consent constitutes an unreasonable restraint of trade. It was a matter of record in Heyde that the employees did not know of the no-hire provision:
“The employees hired by Dove testified in their affidavits that they did not know about the no-hire provision in the Agreement between Greenbriar and Dove that placed restrictions on their ability to he employed by Dove. Some of the employees hired by Dove testified that they inquired whether they would be bound by a non-compete agreement and were told by Greenbriar that they would not be subject to such restrictions.” Heyde, 258 Wis. 2d at 33, 654 N.W2d at 832.
Here, by contrast, nothing in the record indicates that Booker was unaware of the no-hire provision. On appeal, Fox Valley argues that the provision was “undisclosed.” However, as H&M correctly points out, Fox Valley did not make this assertion in its answer, nor did Booker make the assertion in his affidavit. Thus, there is nothing in the record indicating that Booker was unaware of the no-hire provision.
In my opinion, if the no-hire provision was undisclosed, then the provision would be void as against public policy. The majority is correct that a no-hire provision is not a restrictive covenant. However, as the Heyde court pointed out, no-hire provisions have the same effect on employees as restrictive covenants. Heyde, 258 Wis. 2d at 36-37, 654 N.W2d at 834. Thus, employees should be told of such a provision when they begin their employment. Two employers should not be able to contract away an employee’s future employment opportunities without the employee’s knowledge or consent.
What Booker did here is similar to what millions of Americans do. He took a less than ideal job, and through that job made contacts which allowed him to take a better job. When an employee enters into this situation, he or she should be told of restrictions on future employment opportunities. In this regard, I share the concerns of the concurring justice in Heyde, who wrote the following:
“I write separately to explain that the no-hire contract in the present case severely restricts future employment opportunities of employees without their knowledge or consent. People agreed to work as Greenbriar’s at-will employees (meaning they were free to leave employment at any time and Greenbriar was free to terminate their employment at anytime for almost any reason). When the at-will employment ceased, the former Greenbriar employees would find, to their surprise, that they were handicapped in getting new employment by a secret deal between Greenbriar and another business.
I agree with the court of appeals: ‘The no-hire provision violates public policy by restricting Greenbriar therapists the right [sic] to freely sell their skills in the labor market. Without signing any agreement or even being given notice ... current and former Greenbriar therapists are restricted from being employed by these facilities, unless Greenbriar gives consent and unless the facilities are willing to pay the fee.’
To assert that Greenbriar’s employees are not ‘unreasonably restricted or otherwise hurt by the no-hire clause in the contract between Greenbriar and Dove’ is to ignore the harsh realities of the job market. The dissent asks, ‘Why should Dove, which freely agreed to pay the 50 percent premium if it hired a Greenbriar employee, he entitled to avoid its contractual obligations by asserting that someone else has sustained a purely hypothetical injury?’ The law of this State answers this question: freedom to contract, like other freedoms, has limitations.
The limitation on the freedom to contract in the present case is the public’s interest in not allowing businesses to unduly and unfairly limit the ability of former employees to seek new employment. It is an unfair and an undue limitation on an employee’s right to seek employment for an employer to contract away an employee’s freedom of future employment without that employee’s ever knowing about or consenting to the limitation. Employees should be able to decide whether they want to work for Greenbriar under these conditions. The secret deal cut in the present case between two businesses affecting non-consenting employees is unduly harsh and oppressive to the employees and is therefore contrary to the common law and public policy of the state of Wisconsin.” (Emphasis omitted.) Heyde, 258 Wis. 2d at 45-47, 654 N.W.2d at 838-39 (Abrahamson, C.J., concurring).
Although it is true that Booker was in fact hired by Fox Valley, the reality is that liquidated damages provisions such as the one at issue here will make it more difficult for affected employees to obtain new employment. As the Heyde court held, “[i]t is apparent that a nursing home facility would prefer to hire therapists who are not subject to a 50% salary ‘fee’ that must be paid to a former employer, thereby putting the Greenbriar therapists at a disadvantage in obtaining employment.” Heyde, 258 Wis. 2d at 40, 654 N.W.2d at 836.
The majority is correct that H&M has a legitimate business interest in not being simply an employment agency for its customers, and that the no-hire provision protects H&M’s sole business asset. 209 Ill. 2d at 64. Neither the majority nor H&M, however, has explained why H&M could not accomplish the same thing by entering into the agreement with its employees. This way, H&M’s business interests would be protected and the employees would not have their future employment opportunities contracted away by others. At the very least, however, I believe that employees should be told of such no-hire provisions when they accept employment. Because in this case it is not a matter of record that the provision was undisclosed, I concur in the majority’s judgment.