It’s always interesting to see how these things turn out.
Kohl’s Corp. has a fight in store as it tries to stop its top information technology executive from taking a job with retailer Hudson’s Bay Company.
In its corner, Kohl’s has an employment contract that, on its face, seems clearly to prohibit chief information officer Janet Schalk from moving directly into a similar role at Hudson’s Bay.
But Wisconsin law tilts toward employees in disputes over noncompete agreements, some experts say.
And Schalk is arguing that the restrictions in her employment contract — a contract she signed — are far too broad to be valid, and that Kohl’s has nothing to fear from her departure.
Among her contentions: She’s not going to a competitor of “mid-tier” Kohl’s, but to a high-end retailer whose U.S. operations include Saks Fifth Avenue, Saks Fifth Avenue Off 5th, and Lord & Taylor.
A brief filed by Schalk calls Saks Fifth Avenue a “luxury” chain. Lord & Taylor and Saks Off 5th also operate at higher price points than Kohl’s, the brief says.
Hudson’s Bay describes Off 5th as an off-price chain that is also a “luxury-value destination.” Lord & Taylor department stores sell “high-quality and fashionable merchandise,” the company says.
Thursday, Waukesha County Circuit Judge Maria Lazar will hold a hearing on Kohl’s request for a temporary restraining order enforcing an employment contract that calls for Schalk to wait one year before taking a job such as the one she has accepted at Hudson’s Bay.
The burden will be on Kohl’s to show it will be damaged if Schalk moves on, said Marquette University Law School professor Ralph Anzivino.
Based on experience, I’d bet that Kohl’s loses this one. The tendency of lawyers is to write overly-broad restrictions–mostly to please their clients–and those restrictions are not viewed favorably by Wisconsin courts. That’s why her attorneys went right to the “comparable markets” defense. It would be the same defense if she were to go to K-Mart.
Thankfully, Wisconsin law favors “earning a living” over “all those customers are MINE!!” in this sort of litigation.
Dad called it