author: PRESIDING JUSTICE INGLIS JUSTICE DUNN,

text:
    L S B Z, INC., d/b/a Za Zu Designs, et al., Plaintiffs-Appellees, v. SUSAN BROKIS, Defendant-Appellant.
    Second District
    No. 2—92—0310
    Opinion filed November 17, 1992.

      DUNN, J., dissenting.
    Donald J. Parker, of Donald J. Parker, Ltd., of Downers Grove, for appellant.
    Robert V. Borla and John C. North, both of Borla, North & Associates, of Downers Grove, for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Susan Brokis (the stylist), appeals from the trial court’s grant of a preliminary injunction (see 134 Ill. 2d R. 307(a)(1)) in favor of her former employer, L S B Z, Inc., doing business as Za Zu Designs, a hairstyling salon, and Sam Segretto, co-owner with Raymond “Butch” Koubek of Za Zu (the salon). The preliminary injunction restrains the stylist from violating a covenant against post-employment competition with the salon. The stylist argues that the trial court’s order must be reversed because (1) the salon failed to show that the noncompetition covenant protects any of its legitimate business interests; and (2) the salon failed to show a likelihood of success on the merits, as the covenant is an unenforceable adhesion contract. We reverse and remand.

The salon is located in Hinsdale, Illinois. The stylist began working for the salon in June 1986. She had no written contract with the salon until October 14, 1989, when she and Segretto, on behalf of the salon, signed an “Employment Agreement” (the agreement) providing, in relevant part, that “[a]ffcer termination of employment the Employee agrees not to be employed by any salon, firm or company or to engage in any competing business for himself/herself or others for a period of three (3) years from the date of termination within a ten (10) mile radius of the Employer’s location at the time of termination.”

On January 21, 1992, the salon filed a three-count complaint alleging the following. On or about December 31, 1991, the stylist, without giving the salon notice, terminated her employment with the salon. She was currently working as a hair stylist for the Caryl Richard Hair Salon (Caryl Richard) in Oak Brook, within 10 miles of the salon’s Hinsdale shop. The salon never approved the stylist’s job change. By violating the agreement, the stylist was unjustly depriving the salon of business.

Count I of the complaint alleged breach of contract. Count II alleged that the stylist’s solicitation of the salon’s customers was a tortious interference with the salon’s contractual relationships. These two counts prayed for money damages. Count III alleged that the stylist’s competition with the salon and her solicitation of the salon’s customers were causing the salon irreparable injury for which it had no adequate remedy at law. Count III prayed for an injunction against the stylist’s violation of the agreement.

The salon petitioned for a preliminary injunction to enforce the agreement pending a trial on the merits. The stylist filed written answers to both the complaint and the petition for a preliminary injunction.

On February 25 and 26, 1992, the court heard evidence on the petition. The salon called the stylist as an adverse witness. She acknowledged that, since January 3, 1992, she had been working for Caryl Richard, about five miles from the salon. The stylist never talked with Segretto or Koubek about how the agreement would affect her departure. She did give the salon notice that she was leaving on December 28, 1991. Before leaving, she told only a few clients, who were also close friends, of her move.

When the stylist left the salon, she had a full schedule of bookings for New Year’s eve. Over the New Year’s holiday, she called her clients, including those scheduled to see her on January 3, 1992, and told them of her new location. On her first day at Caryl Richard, the stylist was almost fully booked; probably all the clients she saw that day were ones who originally were scheduled to see her at the salon that day.

The stylist started her work for the salon after becoming a licensed cosmetologist and working at another salon in Chicago. She signed no employment agreements of any kind until the October 3, 1989, agreement. In accord with company policy, the stylist began as an apprentice; she received an hourly wage and was not allowed to work as a stylist with clients of her own until the salon promoted her in April 1987. Thereafter, the salon paid her the standard 44% commission.

The stylist brought no clients with her. Thus, her first client was someone who called the salon and whom the salon’s management referred to her under its “random referral” policy. Management encouraged the stylist to build up a loyal clientele. Eventually, she built up her clientele to the point where she could afford an apartment and thus no longer needed to live with her parents.

The stylist customarily obtained new clients by word-of-mouth from established clients. Relatively few of her new clients were women who called the shop and were referred to her under management’s referral policy. These referrals occurred mainly during the Christmas season. The stylist could not have made a living solely from the clients that management referred to her. The stylist also sought clients by passing out business cards at social occasions. She did not say how many, if any, new clients she obtained this way. As a rule, clients scheduled appointments by calling the shop’s reception desk, but occasionally the stylist’s clients would call her directly to set up an appointment.

The stylist explained that, in her experience in the hairstyling trade, the customer’s loyalty is generally to the individual hairdresser, not to the shop. A woman will stay with a particular hairdresser as long as that hairdresser does satisfactory work. Generally, a client who is not a first-time customer asks the shop for an appointment with a specific hairdresser. The stylist had developed a group of loyal clients who regarded her as their hairdresser. She worked hard at maintaining personal friendships with her clients and regularly sent them Christmas cards. The stylist never had a general list of the salon’s clients but kept an appointment book with her particular clients’ names and phone numbers.

The stylist acknowledged that, when a client pays for services, the client makes the check out to the salon, which then distributes 44% of the proceeds to the individual hairdresser. The salon also pays for heat, rent and facilities and equipment other than the hairdresser’s scissors.

Segretto and Koubek called a meeting of the salon’s employees early in October 1989 and asked all their hairdressers to sign the agreement. The stylist did not remember if a copy of the agreement was available at the meeting. She did recall that Segretto and Koubek stated at the meeting that hairdressers who did not sign the agreement would not be considered loyal workers and would not get any new business directed their way. Segretto and Koubek did not promise any specific new benefit to hairdressers who did sign the agreement. However, the purpose of the agreement was to give signers preference over nonsigners in the referral of new clients.

The stylist explained that she signed the agreement because she felt under “duress”; if she did not sign, she would be out of favor with Segretto and Koubek and would be jeopardizing the clientele she was building. At the time she signed the agreement, the stylist had not considered working elsewhere. She acknowledged that, had she not signed the agreement, she could have, switched employers or opened a new shop and taken all her customers with her.

Two of the hairdressers who worked for the salon at the time of the meeting did not sign the agreement. The salon did not fire either. One had since left the salon because, as a result of her not signing the agreement, management had stopped referring new clients to her. The other, Noreen Guy, was still working at the salon; Guy had long had the highest income of any hairdresser in the shop.

The stylist testified that she received random referrals at no greater rate after she signed the agreement than before. She acknowledged that her 1990 income was about $25,000, roughly a 20% increase over her 1989 income of about $20,500, but she attributed this increase to a normal growth in her business, not to management’s directing extra first-time clients her way.

Shortly before she left the salon, the stylist had a “tearful conversation” with Segretto, explaining that she was going to work for Caryl Richard in violation of the agreement. Before leaving the salon, the stylist told a few close friends, who were also among her clients, that she would be changing employers. She also made a list of clients with whom she had appointments scheduled for January 3, 1992. After she quit the salon, she called these clients to tell them of her new location. She did not try to attract any of the salon’s customers with whom she had not worked previously. The stylist never disparaged the salon. Clients who followed her to Caryl Richard did so by choice.

The stylist testified that, judging by the experiences of hairdressers who formerly worked for the salon, the majority of her clients would not patronize the salon if she left. However, most of her clients were housewives with small children and would not follow the stylist if they had to travel more than 10 miles. The stylist could not go on making her living as she had were she required to wait three years before working at a shop within 10 miles of the Hinsdale salon.

The salon next called Michael Gilberto, who had worked for the salon since 1980. Gilberto owned no share in the salon’s Hinsdale shop, but he was a part owner of its Naperville location.

Gilberto recalled that the stylist attended at least part of the October 3, 1989, meeting where Segretto and Koubek told their employees about the agreement. At the meeting, all employees received a copy of the agreement. Segretto and Koubek did not insist that hairdressers sign the agreement immediately; they asked their employees to examine the agreement and consult with counsel.

The owners never said that anyone who did not sign the agreement would be terminated. Gilberto did not sign the agreement and was still working at the salon. Early in the 1980s, the salon had presented Gilberto and other employees with a similar agreement, which Gilberto also had refused to sign.

Gilberto denied that Koubek or Segretto ever told their employees that anyone who did not sign the agreement would not be allowed to participate in random referrals. Rather, the owners said that those who signed the agreement would be given more consideration and would have more clients referred to them. Since the meeting, Gilberto had not been deprived of random referrals. Rather, those who had signed the agreement were given first consideration. Only if no employee who had signed the agreement was available would a new customer be referred to Gilberto.

Raymond Koubek testified that, at the time of the hearing, the salon had about 25 employees at its Hinsdale shop. When defendant started to work for the salon, she was already a licensed hairdresser, as are all the salon’s starting employees. As did all employees, the stylist began as an apprentice so that she could learn the salon’s distinctive methods and techniques. The salon’s training program differs from those offered by cosmetology schools, including instruction not only on hairstyling techniques, but also on personal relations with customers.

Koubek stated that in 1983, the salon presented its employees with an employment agreement similar to the one the stylist signed in 1989. Some employees signed the 1983 agreement and some did not. Most of those who did not were still with the salon.

On October 3, 1989, Koubek and Segretto asked their employees to sign the agreement. The stylist, all the other hairdressers and some assistants attended the meeting. Everyone there received a copy of the agreement. The owners never threatened anyone with termination for not signing the agreement, and several people stated at the meeting that they did not want to sign the agreement. The stylist did not sign the agreement until October 14, 1989; until then, she was free to take her clients with her to any new shop she joined. Even after signing the agreement, the stylist could leave the salon and solicit any clients she wanted as long as she worked more than 10 miles from the salon’s Hinsdale location.

Koubek explained that, in 1989, he and Segretto decided to introduce the agreement because two hairdressers that the salon had trained had left to open a competing shop across the street. Also, since the last contract in 1983, Za Zu had acquired many new employees who were not under contract and were trying to build their clienteles. Koubek and Segretto thus decided to give preference in new client referrals to those who indicated their commitment to the shop by signing the agreement. At the October 3, 1989, meeting, they told their employees that hair stylists who signed the agreement would be put on a preferred list for new referrals. Nonsigners might still get new referrals, but the salon would not guarantee them.

Koubek testified that the company followed through on this promise of preferential treatment for “contracted” employees. He knew that receptionists were following his directions in giving new referrals to “contracted” employees, as the incomes of these employees had increased since they signed the agreement. Koubek stated that, after defendant signed the agreement, he directed the shop’s receptionists to refer new clients to the stylist. He had no direct knowledge of any case where a receptionist specifically referred a new customer to the stylist. He believed that the stylist’s income increased at a higher rate from 1989 to 1990 than it did from 1988 to 1989, although it was possible that, in 1989, the rate she charged her clients increased by 5%.

The agreement’s 10-mile limitation was based upon a map Koubek and Segretto drew up for a Federal lawsuit about five years before the hearing. At the time of the Federal case, about 97% of the salon’s Hinsdale customers resided within 10 miles of the shop, and about 65% within 5 miles. The proportion of the client base that came from between 5 and 10 miles of the shop had increased somewhat since Koubek and Segretto drew up the map. The three-year limitation was based on the assumptions that, after that time, a former employee would be unlikely to contact her clients from the salon and these clients would probably not still be waiting for her services.

Although the salon’s Naperville location was 13 miles from its Hinsdale shop, some clients did switch from one shop to the other. One employee who signed the 1989 agreement left the salon to open her own shop outside the 10-mile limit. About 20% to 30% of her clients followed her away from the shop, but the remaining clients stayed with the salon and were assigned stylists according to the terms of the agreement. However, when the stylist left the salon and started working about 3.6 miles away at Caryl Richard, about 99% of her regular clients stopped patronizing the salon. Koubek did not know how many of these continued with the stylist.

By the time the stylist left the salon, she had acquired, according to Koubek, a “mature-built” clientele, that is, she had about as many clients as she could handle. Her 1990 wages were normal for a fully active hairdresser. None of the stylist’s clientele was generated “completely by her own efforts.” Koubek did not know how many women came to the salon solely because they wanted the stylist to style their hair.

Acknowledging that the salon’s Hinsdale shop would not have to close merely because the stylist left, Koubek stated that, given the shop’s high overhead and fixed expenses, the loss of the income that the stylist had been generating would force the shop to “cut down on receptionists.” Already, the salon had been forced to lay off some assistants.

Sam Segretto testified that all hairdressers, including the stylist, attended the October 3, 1989, meeting. Segretto and Koubek explained that no one who refused to sign the agreement would be fired. However, because those who signed the agreement would be committing themselves to the company, they would get preference in receiving referrals. The stylist received this preferential treatment from the time she signed the agreement.

On or about December 21, 1989, the stylist mentioned to Segretto that she would leave the salon. On December 23, 1989, Segretto asked the stylist why she was leaving. She did not explain why she was leaving or where she was going. Shortly after Christmas, the two met for lunch, and Segretto again asked the stylist why she was leaving. She reluctantly told Segretto that she was relocating to Caryl Richard. She had considered another salon farther away but found it unsuitable. The stylist admitted to Segretto that she was breaking the agreement.

Segretto explained that the salon does not advertise and therefore relies primarily on word-of-mouth for new business. When the stylist started to work for the salon, Segretto did not tell her that any clientele she built up would have to stay with the shop if she left. The agreement did not prevent the stylist from taking clients with her as long as she relocated more than 10 miles away or waited over three years. The salon does not keep track of who generates which clients, although it does record which stylist served each client on each occasion.

The salon pays each stylist a commission every two weeks. The salon, not the stylist, pays for liability insurance and is responsible for collections and for bad debts.

The stylist’s first witness, Joanne Caiafa, testified that, although she worked for the salon in 1989, she did not receive a copy of the agreement at the October 3, 1989, meeting. She did not recall other employees receiving a copy of the agreement. Segretto and Koubek did not say that she could take a copy of the agreement home to show to a lawyer.

Caiafa asked Koubek and Segretto what the agreement promised employees. The two owners responded that the agreement would enable the employees to work in a “professional atmosphere” and that if the employees signed the agreement, Koubek and Segretto would “help us out.” Based on this conversation, Caiafa decided not to sign the agreement. Caiafa recalled that the stylist attended the meeting.

The stylist testified in her own behalf. She did not recall whether she attended all of the October 3, 1989, meeting. She did not recall receiving a copy of the agreement at the meeting, or being told at the time that she could take the agreement home and show it to a lawyer. Koubek and Segretto said that hairdressers who did not sign the agreement would not be considered for new clients.

As the stylist recalled, she did not receive a copy of the agreement until October 14, 1989, the day she signed it, at an office meeting with Koubek. Segretto may have been present also. Koubek never told her that she would lose her job if she did not sign the agreement.

The stylist testified that she signed the agreement because she felt that she had no choice. She was just building up a good clientele and was afraid of losing status and favor with management.

The stylist testified that every year she worked at the salon her income went up because she was building her clientele. An increase of $5,000 per year in income was about typical. She was not as busy in 1991 as in 1990, but her income did rise. The fall in her activity was due to a midyear price increase that was not made at her insistence.

The stylist estimated that, since leaving the salon, she had serviced about 80% of her clients from the salon at her new location. The other 20% might yet come to see her at Caryl Richard.

In rebuttal, Sam Segretto testified that the stylist signed the agreement in his presence at the shop on October 14, 1989. Because that day was a Saturday, Segretto was positive that Koubek was not there when the stylist signed the agreement. The stylist walked into Segretto’s office and signed the form in his presence.

The trial court granted the preliminary injunction. The judge announced the following fact findings. The stylist learned of the agreement at the October 3, 1989, meeting. On October 14, 1989, she signed the agreement of her own free will. There was no duress, and the agreement was not an adhesion contract. The stylist’s client base was not fully developed in 1989. There was consideration for the agreement; the stylist did in fact receive the promised preference in referrals, even if her business did not increase overall. The salon had shown a clear and ascertainable right in need of protection, i.e., its interest in its present customer base. The salon was threatened with irreparable injury and had no adequate remedy at law. The time and geographic limits of the agreement were reasonable.

On appeal, the stylist argues that the trial court abused its discretion in granting the preliminary injunction. She argues specifically that the manifest weight of the evidence shows that (1) the salon has not established that it has a clear interest in need of protection because the agreement serves no legitimate interest of the salon but is intended merely to restrain competition per se; (2) the salon has not demonstrated a likelihood of success on the merits because the agreement is an adhesion contract without consideration.

We reverse the trial court’s judgment. We conclude that the salon has not made a sufficient showing of the necessary elements for preliminary injunctive relief.

The purpose of a preliminary injunction is not to determine controverted facts or the merits of the case. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386.) Rather, a preliminary injunction is intended to preserve the status quo pending a decision on the merits of the case. (In re Adoption of Scraggs (1988), 125 Ill. 2d 382, 388; Cullen Electric Co. v. Cullen (1991), 218 Ill. App. 3d 726, 732.) The status quo is the last peaceable uncontested status that preceded the litigation. (Southern Illinois Medical Business Associates v. Camillo (1989), 190 Ill. App. 3d 664, 671; Hydroaire, Inc. v. Sager (1981), 98 Ill. App. 3d 758, 761.) Moreover, “[a] preliminary injunction is an extraordinary remedy used only in situations where an extreme emergency exists and serious harm would result in the absence of the injunction.” Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, 490.

To obtain a preliminary injunction, a plaintiff must establish that (1) he possesses a clearly ascertained right in need of protection; (2) he will suffer irreparable injury without the injunction; (3) there is no adequate remedy at law; and (4) there is a likelihood of success on the merits. (Scraggs, 125 Ill. 2d at 388; Millard Maintenance Service Co. v. Bernero (1990), 207 Ill. App. 3d 736, 743.) Because a preliminary injunction is designed to preserve the status quo pending a decision on the merits, the plaintiff need not carry the same burden of proof that is required to support the ultimate issue. (Buzz Barton, 108 Ill. 2d at 386.) To satisfy the first and fourth of these requirements, a plaintiff need only raise a fair question as to the existence of the right which he claims and lead the court to believe that he will probably be entitled to the relief requested if the proof sustains his allegations. (Barton, 108 Ill. 2d at 386, relying on Nestor Johnson Manufacturing Co. v. Goldblatt (1939), 371 Ill. 570; Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, 151; A.B. Dick Co. v. American Pro-Tech (1987), 159 Ill. App. 3d 786, 791.) Whether to grant or deny a preliminary injunction is entrusted to the sound discretion of the trial court, and a reviewing court will not reverse the trial court’s decision unless that decision is against the manifest weight of the evidence. Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, 15.

The stylist argues first that the salon failed to show that it had a protectable interest in enforcing the agreement. She correctly notes that covenants not to compete are in effect restraints on trade and will be carefully scrutinized to insure that their intended effect is not to prevent competition per se. (Tyler, 214 Ill. App. 3d at 149; Pflug, 206 Ill. App. 3d at 491.) The time and territorial restrictions of a covenant not to compete must be reasonable, and the covenant must protect a legitimate business interest of the employer. (Millard Maintenance, 207 Ill. App. 3d at 744; Reinhardt, 142 Ill. App. 3d at 15.) Whether a covenant not to compete is enforceable is a question of law, but one dependent on the particular facts of the case. Pflug, 206 Ill. App. 3d at 491; A.B. Dick, 159 Ill. App. 3d at 792; Reinhardt, 142 Ill. App. 3d at 15.

The stylist does not challenge the agreement’s time and territorial restrictions. Therefore, the issue is whether the salon has adequately demonstrated a protectable interest. We conclude that the salon has not carried its burden of raising a fair question as to the existence of a protectable interest. Although an employer ordinarily has no protectable interest in its clients as such (Reinhardt, 142 Ill. App. 3d at 15-16), a restrictive covenant may legitimately protect an employer’s clientele against takeover by a former employee. (Tyler, 214 Ill. App. 3d at 150; Agrimerica, Inc. v. Mathes (1990), 199 Ill. App. 3d 435, 443; Booth v. Greber (1977), 48 Ill. App. 3d 213, 218.) Thus, a covenant not to compete is valid if (1) the employer has a near-permanent relationship with its customers and (2) but for her association with the employer, the employee would not have contact with the customers. Arpac Corp. v. Murray (1992), 226 Ill. App. 3d 65, 73; Millard Maintenance, 207 Ill. App. 3d at 747; McRand, Inc. v. van Beelen (1985), 138 Ill. App. 3d 1045, 1051.

We first consider whether the salon adequately showed that it had a near-permanent relationship with its clientele. We believe that the salon has not made a sufficient preliminary showing of such a relationship.

Illinois courts have developed a set of objective factors to consider in determining whether an employer has a near-permanent relationship with its customers. These factors include (1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer’s .knowledge of its clients; (6) the duration of the customers’ association with the employer; and (7) the continuity of employer-customer relationships. (Agrimerica, 199 Ill. App. 3d at 443-44; A.B. Dick, 159 Ill. App. 3d at 793; McRand, 138 Ill. App. 3d at 1051-54.) The employer is not required to show that the customer relationship is perpetual or indissoluble, or that a near-permanent relationship exists with each customer. Preferred Meal Systems, Inc. v. Guse (1990), 199 Ill. App. 3d 710, 723-24.

Application of the first objective factor, the length of time required to develop clientele, does not favor the salon. It is clear that the salon is not required to devote a great deal of time to develop customers. There is no indication that the salon must cultivate a potential client for a substantial period before that client will do business within the salon for the first time. This is contrary to the factual scenarios presented in Agrimerica and McRand, in which near-permanent .employer-customer relationships were found. In Agrimerica, a sales director for an animal feed speciality products manufacturer testified that salespeople needed 6 to 12 months to win over a prospective customer and persuade him to purchase a product. (Agrimerica, 199 Ill. App. 3d at 444.) Likewise, in McRand, the president of a company that designed and coordinated management award programs for large corporations offered uncontradicted testimony that it took one to three years to develop a major account before any business from that client would be forthcoming. McRand, 138 Ill. App. 3d at 1050.

The second objective factor, the amount of money invested to acquire clients, likewise cuts against the salon’s claim of a near-permanent relationship with its customers. The salon does not invest a substantial amount of money to acquire clients. One of its owners testified that it does not even advertise, but, rather, relies on word-of-mouth for new business. To the contrary, in Millard Maintenance, in which a near-permanent employer-customer relationship was found, the record showed that the employer “devoted substantial resources to developing and maintaining a clientele.” (Millard Maintenance, 207 Ill. App. 3d at 748.) In Arpac, another case in which a near-permanent relationship was established, the evidence was that the employer spent an “absolute fortune” on developing customers and maintaining their loyalty. (Arpac, 226 Ill. App. 3d at 73.) Although the salon claims to spend a substantial amount for the maintenance of its facilities, we do not believe this factor to be dispositive since any business open to the public has similar overhead expenses. Moreover, the salon’s claim that its hairdressers supply only their scissors and their labor is disingenuous in that the stylists’ hairdressing talents are what the customers come in for, not some product or special service produced by the salon and merely delivered via the hairdressers. Finally, the stylist was a licensed cosmetologist when she came to the salon; she was not trained exclusively by the salon. We do not believe that the supplemental training in hairstyling given to the stylist by the salon, or the instruction on customer relations, amounts to the necessary investment in developing clientele.

The third factor, the degree of difficulty in acquiring clients, does not favor the salon. The salon offered no evidence of any difficulties encountered in obtaining customers. As noted, the salon does not advertise, but relies primarily on referrals from persons currently being serviced by its hairdressers.

The fourth factor concerns the extent of personal customer contact by the employee. Here, the hairdressers who work at the salon enjoy close personal contact with the persons whom they service, and they possess knowledge of those persons’ needs. However, we believe there is a fundamental difference between this case and cases in which this factor was found to favor the existence of a near-permanent employer-customer relationship. See McRand, 138 Ill. App. 3d at 1053; Agrimerica, 199 Ill. App. 3d at 445-46; Tyler, 214 Ill. App. 3d at 150.

In the cases just cited, customers came to the employer for a product or a service offered by the employer through its employee: in McRand, it was for business award programs, in Agrimerica, customers bought animal feed specialty products, and in Tyler, clients wanted the employer’s lawn care products. The former employees sought to be enjoined in those cases were little more than sellers of the employer’s products or services. Here, the salon has not proven a similar situation. Specifically, it has not shown that the persons who get their hair styled at the salon are its customers, rather than customers of the individual hair stylists who service them.

The stylist testified that she was told by the salon’s owners that she was to build up a loyal clientele. She also testified that in her experience, customers are loyal to individual hairdressers more so than to the shops in which they work. One of the salon’s owners testified that he did not inform the stylist that the clientele she built up would be considered the salon’s customers. The salon had the burden of proving whose customers the shop patrons were. This it did not do, even considering the reduced burden of proof necessary for the issuance of a preliminary injunction. Absent such proof, this fourth factor does not favor the salon.

Likewise, the fifth factor, the extent of the employer’s knowledge of its clients, does not cut in favor of the salon. One of the salon’s owners testified that the salon does not even keep track of whether a customer is generated by itself or by a hairdresser. Moreover, the salon offered no evidence that it possesses knowledge of clients’ special needs or wants. Although individual hairdressers allegedly do possess such knowledge, that fact does not render this case similar to cases like Arpac, Millard Maintenance or McRand, in which the employees’ knowledge of customer needs was found to support the employer’s claim of a near-permanent relationship with its customers. (Arpac, 226 Ill. App. 3d at 73; Millard Maintenance, 207 Ill. App. 3d at 748; McRand, 138 Ill. App. 3d at 1052-53.) As we previously noted, we find the salon’s relationship with its hairdressers, and thus with its customers, to be significantly different than the typical employer-employee relationship which deals with an employer’s product rather than an employee’s services.

Finally, the salon has not met its burden with regard to the sixth and seventh factors, the duration of the customers’ association with the employer and the continuity of employer-customer relationships. The problem again lies with the salon’s failure to establish that it, rather than the stylist, has a proprietary interest in the business of the persons who get their hair done by the stylist. Even assuming that those persons are the salon’s customers, the salon did not make a sufficient showing with regard to the sixth and seventh factors when compared with other cases in which a near-permanent relationship has been found.

In Arpac, the court found that the employer had a near-permanent relationship with its customers, many of which had an association with the employer in excess of 10 years. The former employee sought to be enjoined had worked for the employer for only three years. (Arpac, 226 Ill. App. 3d at 70, 73.) In Millard Maintenance, testimony established that two of the employer’s clients had been affiliated with it for more than 15 years, another client had been a customer for over 36 years, and another customer had been using the employer’s services in excess of 50 years. The employer’s seven largest clients made up 70% of its business. The former employee sought to be enjoined had worked for the employer for under dAk years. (Millard Maintenance, 207 Ill. App. 3d at 740, 743.) The court found that a near-permanent employer-customer relationship existed. (207 Ill. App. 3d at 747-48.) Similarly, in Booth (48 Ill. App. 3d 213), the employer had developed a clientele over a three-year period and the former employee had been employed for only 13 months. (48 Ill. App. 3d at 215-16, 219.) This fact supported the finding that a near-permanent relationship existed. 48 Ill. App. 3d at 219.

In contrast, the case at bar contains no evidence that the salon had steady customers who only began to have their hair cut by the stylist when she became employed there. Rather, the evidence raises the inference that the stylist was referred a relatively small number of clients who called the salon, perhaps as first-time customers, and that she then built a clientele through referrals to her by those clients.

We believe this case is much like the cases of Reinhardt Printing Co. v. Feld (1986), 142 Ill. App. 3d 9, and Label Printers v. Pflug (1991), 206 Ill. App. 3d 483, in which no near-permanent employer-customer relationship existed. The evidence in Reinhardt established that the former employee sought to be enjoined had solicited the majority of her customers “not because of her association with [the employer], but rather, through her own efforts on [the employer’s] behalf and in furtherance of her association with it.” (Emphasis in original.) (Reinhardt, 142 Ill. App. 3d at 17.) In Pflug, the evidence likewise showed that the defendant/former employee had himself obtained many of the customers the employer sought to prohibit him from contacting. (Pflug, 206 Ill. App. 3d at 494.) Here, the majority of the stylist’s customers allegedly came directly from referrals by persons whose hair she had styled rather than from a list of long-standing customers of the shop.

We thus turn to the second part of the test: whether the employee would have had contact with the customers absent her association with the employer. This part of the test arguably favors the salon since the stylist brought no clients with her when she started there. We think it is far from clear, however, that the stylist would not now be servicing some of the same clients had she originally gone into competition with the salon in the same general location. The evidence that a hairdresser’s clients will leave a shop when the hairdresser does and follow her within a radius of approximately 10 miles before they return to a shop closer to their homes implies that customers’ allegiance is first to convenience, then to an individual hair stylist, and then to a shop.

Nevertheless, given the salon’s reduced burden of proof on the issue of a protectable interest, we will assume that the stylist would not have had contact with her customers if she had not been hired at the salon. Given our conclusion, however, that the salon has not raised a fair question as to its claim of a near-permanent relationship with its customers, the assumption does not alter our resolution of this cause.

We find that the issuance of the preliminary injunction was against the manifest weight of the evidence. While we do not approve of the stylist’s actions, we find that the extreme remedy of a preliminary injunction is not warranted. (See Reinhardt, 142 Ill. App. 3d at 15 (“[P]laintiff must show injury to its legitimate business interests separate and distinct from defendant’s breach of the covenant [not to compete] to secure enforcement thereof”).) Our decision eliminates the need to discuss the stylist’s claim that the agreement she signed with the salon is an unenforceable contract of adhesion.

The judgment of the circuit court of Du Page County is reversed and the cause remanded.

Reversed and remanded.

McLAREN, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent. I disagree with the conclusion of the majority that the salon has not carried its burden of raising a fair question as to the existence of a protectable interest.

I believe the salon did adequately show it had a near-permanent relationship with its clientele. The majority correctly conclude that Illinois courts have developed a set of objective factors to consider in determining whether an employer has a near-permanent relationship with its customers. My disagreement with the majority, however, is their application of these factors to the facts of this case.

These factors include (1) the length of time required to develop the clientele; (2) the amount of money invested to acquire clients; (3) the degree of difficulty in acquiring clients; (4) the extent of personal customer contact by the employee; (5) the extent of the employer’s knowledge of its clients; (6) the duration of the customers’ association with the employer; and (7) the continuity of employer-customer relationships. (Agrimerica, 199 Ill. App. 3d at 443-44; A.B. Dick, 159 Ill. App. 3d at 793; McRand, 138 Ill. App. 3d at 1051-54.) The employer is not required to show that the customer relationship is perpetual or indissoluble, or that a near-permanent relationship exists with each customer. Preferred Meal System v. Guse (1990), 199 Ill. App. 3d 710, 723-24.

Applying the McRand factors here, I find sufficient evidence of a near-permanent relationship between the salon and its clients. The first three factors, taken together, do not cut clearly in favor of either party. The length of time that the salon takes to develop customers appears relatively brief. There is no indication that a hairstyling shop such as the salon must cultivate a potential client for a substantial period before that client will do business with the employer for the first time. (See, e.g., Agrimerica, 199 Ill. App. 3d at 444 (employer’s salespeople needed 6 to 12 months to develop sufficient confidence on the part of prospective customers and to persuade them to buy products); McRand, 138 Ill. App. 3d at 1051 (designer of management incentive and award programs for corporations normally required one to three years of contact with client before any business was booked for that client).) The salon does not appear to invest a great deal per client beyond the maintenance of the shop’s facilities. However, this cost is substantial, as the stylist supplies only her scissors and labor. The difficulty of acquiring clients is unclear from the record.

However, the remaining McRand factors, particularly the extent of personal contact between employee and client, do strongly favor the salon. Here, there was testimony that the salon aided defendant (and other stylists) not only in developing specialized techniques, but in cementing durable relationships by learning and attending to the personal desires of each client. Our courts have repeatedly recognized that intensive contact between the employee and the client, helping to bind the client to the employer for as long as the employee works for the employer, is a weighty consideration in favor of finding a near-permanent employer-client relationship.

McRand noted that in a highly competitive business, personal contact between employee and customer is important to maintaining long-term customer relationships. Businesses that settle for transitory clienteles do not bother to personalize the relationship between employee and client or to develop extensive knowledge of client needs, because the “[ejmployees’ extensive and specific knowledge of customers is unnecessary in a business where the customers are transitory” (McRand, 138 Ill. App. 3d at 1053). Applying this principle to the facts before it, the McRand court emphasized that the employees’ close working relationships with customers and knowledge of particular customers’ needs was strong evidence of near-permanent employer-customer relationships.

Similarly, in Agrimerica, the court emphasized that the defendant-former employee developed close working relationships with customers, visiting them regularly and winning their personal trust. Agrimerica, 199 Ill. App. 3d at 445-46.

In Tyler Enterprises of Elwood, Inc. v. Shafer (1991), 214 Ill. App. 3d 145, the court emphasized that the employer’s business was highly competitive and that, because the defendant-employee had extensive contact with customers, he “received invaluable information including the knowledge of the customer’s individualized needs. As a matter of policy, [the employer] put a premium on developing extremely close working relationships between its employees, like [the defendants], and its customers.” (Tyler, 214 Ill. App. 3d at 150.) In the case at bar, the testimony of both parties strongly supports a similar conclusion. See also Millard Maintenance, 207 Ill. App. 3d at 748 (employer and its sales staff, including defendant, “made an effort to develop *** close personal relationships” with customers); Guse, 199 Ill. App. 3d at 723 (employer, “doubtless through the efforts of the individual defendants themselves, had established a reputation for service, quality and reliability” with customers); A.B. Dick, 159 Ill. App. 3d at 793 (defendant-employee was “the central contact between plaintiff and its customers”).

In the case at bar, the personalized nature of the employer’s services, including defendant’s attention to the individual needs of clients and her development of long-term relationships of trust with her clients — ways of doing business that the salon encouraged and provided guidance in — militates in favor of the trial court’s finding that plaintiff and its clients had a near-permanent relationship.

Defendant argues that the evidence at the hearing demonstrated that a client’s loyalty is to the stylist rather than to the shop. Assuming this to be so, I conclude that this simply demonstrates that, as long as a stylist stays at the shop, the clients will be steady customers of that shop. This appears to be exactly the case at bar, not only as to defendant, but also as to other stylists (such as Michael Gilberto and Noreen Guy), who appear to have built up steady client bases over the years. The typical relationship between the salon and a client apparently is not transitory; clients are not anonymous faces who casually patronize the salon part of the time and a variety of other shops other times, depending on convenience or whim. Thus, the duration and continuity of customer associations — the sixth and seventh McRand, factors — cut strongly in plaintiffs’ favor.

Defendant may not use the fact that customers followed her when she quit the salon as evidence that the salon lacked a long-term relationship with its clients. Insofar as defendant’s own covenant violations cut short the relationships between the salon and its clients, defendant would be asking us to make her covenant violations self-validating. (See Agrimerica, 199 Ill. App. 3d at 447.) As the cases I have cited tend to show, covenants not to compete become most important to employers precisely where there is a danger that employees who leave the business will take clients along with them. This fact does not establish that the covenants are invalid; to the contrary, the legitimate interest that employers have in such covenants is to prevent employees from taking over customers through the contacts with those customers that the employee has made while working for the employer. Tyler, 214 Ill. App. 3d at 150, relying on House of Vision, Inc. v. Hiyane (1967), 37 Ill. 2d 32.

For the reasons just stated, I am of the opinion the salon carried its burden of raising a fair question as to the existence of a protectable interest. I find the issuance of the preliminary injunction was not against the manifest weight of the evidence. The judgment of the trial court should be affirmed.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    KEVIN L. HESS, Plaintiff-Appellant, v. CLARCOR, INCORPORATED, Defendant-Appellant.—PATSY J. TURNER, Plaintiff-Appellee, v. CLARCOR, INCORPORATED, Defendant-Appellant.
    Second District
    Nos. 2—91—1100, 2—91—1296, 2—91—1336 cons.
    Opinion filed November 19, 1992.

      Bruce R. Alper and Christopher A. Johlie, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for Clarcor, Incorporated.
    David B. Menchetti, of Cullen, Haskins, Nicholson & Menchetti, of Chicago, and Gregory E. Tuite, of Tuite, Shaw, Gesmer, Finnegan & Tuite, of Rockford, for Kevin L. Hess and Patsy J. Turner.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiffs, Kevin Hess and Patsy J. Turner, sued to enjoin the defendant, Clarcor, Inc. (Clarcor), from terminating their employment. The plaintiffs alleged that the threatened discharges were in retaliation for the plaintiffs’ filing of claims under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.). Charles Turner, who is not a party to this appeal, brought a similar action. The trial court consolidated the actions. After an evidentiary hearing, the court denied Hess and Charles Turner injunctive relief, holding that Clarcor did not violate public policy by terminating either, because the firings were the result of Clarcor’s nondiscriminatory absenteeism policy and were not undertaken in retaliation for the exercise of rights under the Workers’ Compensation Act.

The court preliminarily and permanently enjoined the defendant from terminating Patsy Turner. Relying on Hartlein v. Illinois Power Co. (1991), 209 Ill. App. 3d 948, which was reversed by the supreme court in an opinion (No. 72303) filed October 1, 1992 (151 Ill. 2d 142), the court concluded that Clarcor terminated Patsy Turner, not because she was subject to the absenteeism policy, but in retaliation for her having filed a workers’ compensation claim.

On appeal, Kevin Hess argues that his case is legally indistinguishable from Patsy Turner’s and, thus, that the trial court should have enjoined Clarcor from terminating him. Clarcor responds that (1) the court correctly found that Clarcor did not discharge Hess in retaliation for his exercise of rights under the Workers’ Compensation Act; and (2) even had Hess proved retaliatory discharge, he would be entitled only to money damages and not to an injunction against termination.

Clarcor appeals the judgments in favor of Patsy Turner, arguing that (1) the trial court erred in finding that Clarcor discharged Patsy Turner in retaliation for her exercise of her rights under the Workers’ Compensation Act; and (2) even if Patsy Turner proved a retaliatory motive for her discharge, she would be entitled only to money damages and not to injunctive relief.

We affirm the judgment in favor of Clarcor against Kevin Hess. We reverse the judgment in favor of Patsy Turner against Clarcor. In so ruling, we hold that (1) the evidence supported the trial court’s determination that Kevin Hess was terminated through the application of Clarcor’s absenteeism policy; (2) Clarcor’s nondiscriminatory application of its “inactive employee policy” does not support a claim for retaliatory discharge; (3) the trial court’s finding that Clarcor discharged Patsy Turner in retaliation for her exercise of her rights under the Workers’ Compensation Act is unsupported by the evidence and cannot stand; and (4) neither plaintiff was entitled to injunctive relief.

Clarcor is a holding company with three main “groups”: Consumer Products, Filtration, and Precision Products. J.L. Clark is a division of the Consumer Products group. On July 25, 1991, the three plaintiffs filed complaints to enjoin Clarcor from terminating the plaintiffs effective August 1,1991.

Kevin Hess’ complaint alleged the following. Hess had been with Clarcor for about 12 years. On or about May 29, 1990, he was injured in the course of his employment with J.L. Clark. The injury caused him to miss work. On March 26, 1991, Hess’ treating physician released him to work without restrictions. However, Clarcor directed Hess to submit to an examination by Dr. John Koehler. On March 30, 1991, after examining Hess, Dr. Koehler restricted Hess to work involving lifting no more than five pounds at a time.

On April 18, 1991, Clarcor, citing Dr. Koehler’s restrictions, refused to allow Hess to return to work. While Hess was disabled, Clarcor refused to pay Hess workers’ compensation benefits, instead paying him disability benefits under a group insurance plan directed at employees whose injuries are not work related.

On July 23, 1991, Hess filed a claim for workers’ compensation benefits with the Illinois Industrial Commission. In May 1991, Clarcor wrote Hess that Hess would be terminated July 31, 1991, if he did not return to work for 10 consecutive working days prior to August 1, 1991. Clarcor had not offered Hess any type of work since April 1991.

According to the complaint, the threatened termination violated the Workers’ Compensation Act and, under Hartlein, Hess was entitled to an injunction preventing Clarcor from firing him.

Attached to the complaint was a letter to Hess from Chris Beck, a corporate human resources administrator for Clarcor, informing Hess that his employment would be terminated on July 31, 1991, “under a company policy applicable to all employees who have not performed services for nine months or more.” Hess could avoid termination by returning to work for at least 10 consecutive working days prior to August 1, 1991, provided that there was a position for which he was qualified. Beck informed Hess of the consequences of termination, including that, after July 31, 1991, Hess could continue his current medical and dental insurance coverage only if he remitted the appropriate monthly premium.

Patsy Turner’s complaint alleged the following. She had been employed by Clarcor for about 24 years. On or about June 19, 1987, she injured her back and knee at work. On September 28, 1987, she filed a claim for workers’ compensation benefits with the Illinois Industrial Commission. On September 8, 1989, she was laid off because of work restrictions imposed by her treating physician. Later she started to receive workers’ compensation benefits from the Illinois Insurance Guaranty Fund, Clarcor’s workers’ compensation insurance carrier.

Since January 27, 1989, Turner had been limited to light-duty work. Clarcor had not offered Patsy Turner any type of work since September 1989, and Clarcor’s “disability management service” had directed her to seek work elsewhere. On May 1, 1991, Chris Beck notified Turner by letter that, under the new policy, Turner would be terminated on July 31, 1991, unless she returned to work for 10 consecutive working days before August 1, 1991. Robert Luedke, an attorney for the law firm representing Clarcor’s insurance carrier, informed Gregory Tuite, Turner’s attorney, that she would no longer receive temporary total disability benefits under the Workers’ Compensation Act if she refused to look for work elsewhere.

Turner alleged that Clarcor’s actions violated the public policy embodied in the Workers’ Compensation Act and, that, under Hartlein, she was entitled to both preliminary and injunctive relief against the planned discharge.

Attached to the complaint was Robert Luedke’s letter of June 11, 1991, to Gregory Tuite. Luedke, of the Rockford firm of Williams & McCarthy, reminded Tuite of a January 7, 1991, conversation, in which the two attorneys discussed Patsy Turner’s cooperation with an employment counseling service. Luedke noted the Appellate Court’s, Fifth District, decision in Hartlein. He also referred Tuite to the recent decision of the Appellate Court, First District, Industrial Commission Division, in Hayden v. Industrial Comm’n (1991), 214 Ill. App. 3d 749, holding that an employer may terminate an employee’s temporary total disability benefits for refusal to cooperate with rehabilitation efforts. Luedke ended the letter as follows:

“Reading the Hartlein and Hayden decisions together, it appears that the Hartlein decision would restrict J.L. Clark from terminating Ms. Turner from any employment rights she may have at the present time. The Hartlein decision expressly limits itself to employment rights and not entitlement to temporary total disability benefits. The Hayden decision again reaffirms the employee’s duty to cooperate with rehabilitation and the employer’s right to terminate total disability benefits for failure to cooperate.
At this point the position of the employer is that any refusal of Ms. Turner to cooperate with Mr. Yep [the rehabilitation counselor] in his job placement efforts will jeopardize Ms. Turner’s temporary total disability benefits pursuant to Hayden."

Also attached to the complaint was an “initial vocational assessment,” dated May 16, 1991, from Christopher Yep of Disability Management Network, the rehabilitation agency, to Robert Luedke. Yep reported that Turner’s severe medical restrictions made her unable to go back to work for Clarcor. Since her injury, Turner had attempted several times to return to work; however, her knee problems forced her to stop each time. Yep recommended that Turner attempt to find a job “using transferable skills” by August 1, 1991. Such jobs did exist in the Rockford area.

Charles Turner, Patsy Turner’s husband, alleged that, since he injured his back on September 4, 1989, he had been unable to work for Clarcor. Doctors had limited him to desk jobs, and Clarcor had been unable or unwilling to offer him a desk job. Clarcor was not paying him any workers’ compensation benefits.

On or about May 1, 1991, Chris Beck sent Charles Turner a termination letter essentially similar to those she sent Patsy Turner and Kevin Hess. Turner alleged that Clarcor’s attempt to discharge him violated the Workers’ Compensation Act and that the termination would cause him irreparable injury. He therefore requested that Clarcor be enjoined, temporarily and permanently, from discharging him.

After granting all three plaintiffs temporary restraining orders against the planned terminations, the court consolidated the three cases.

On August 20, 1991, Clarcor answered each complaint. It admitted that Kevin Hess was currently an inactive employee who had not worked more than nine days since June 4, 1990. Clarcor denied that Hess’ injury occurred in the course of his employment. The company admitted that Dr. Soriano released Hess for work effective March 26, 1991, but Clarcor stated that, on April 6, 1991, after consultation with Dr. Soriano, Dr. John Koehler restricted Hess to jobs not involving more than five pounds of lifting.

Clarcor admitted that, on April 1, 1991, it was unable to provide Hess with employment consistent with Hess’ work restrictions. Because Clarcor’s workers’ compensation insurance carrier had determined that Hess was ineligible for benefits, the company paid Hess no such benefits; however, Clarcor had been and was now paying Hess benefits under its long-term disability plan.

Clarcor acknowledged sending Hess the May 1, 1991, notice of termination. Clarcor alleged, however, that it did so pursuant to a company policy “applicable to all employees who have not worked for one year or more, regardless of reason.”

Clarcor admitted that Patsy Turner had been unable to work since about September 8, 1989, and was placed on leave of absence on that date. She thereafter received temporary total disability benefits under the Workers’ Compensation Act. Clarcor admitted on information and belief that, on December 28, 1987, Turner filed an application with the Industrial Commission for the adjustment of her claim.

Clarcor acknowledged that it had not offered Turner work since she went on her leave of absence. The company alleged that this was because it had no available work consistent with her medical restrictions. Clarcor admitted on information and belief that Turner received an initial vocational assessment without Clarcor’s knowledge, apparently at the instigation of its workers’ compensation insurer. Turner’s lawyer received a letter from Robert Luedke, but Clarcor denied that Luedke was representing or speaking on Clarcor’s behalf. As with Kevin Hess, Clarcor admitted that it sent Patsy Turner a letter informing her that she faced termination on August 1, 1991, pursuant to a company policy applicable to all employees who had not worked for 10 consecutive work days within a year.

Clarcor admitted that Charles Turner had been unable to work since he injured his back on or about September 18, 1989. Clarcor asserted that the medical restrictions given Turner as a result of his injury made him incapable of doing any work for which he was otherwise qualified; therefore, Clarcor was not able to offer him any work since the injury. Clarcor admitted sending Charles Turner a letter stating that he was subject to the company’s general policy of terminating employees who have been inactive for a year. On or about May 3, 1991, Clarcor’s workers’ compensation carrier discontinued Charles Turner’s temporary total disability benefits because of a nonwork-related health condition and not because of his possible termination.

The company alleged that all three plaintiffs had failed to satisfy the requirements for injunctive relief.

On August 20, 1991, the court heard evidence on all the plaintiffs’ requests for preliminary injunctive relief. This evidence was later incorporated into the evidence at the hearing on the requests for permanent injunctions.

The plaintiffs called John F. Kissinger as an adverse witness. At all relevant times, Kissinger was director of employee relations for J.L. Clark. His primary responsibility was to consult with Clarcor management about injured J.L. Clark employees to determine what the company should do in each case. He had no role in administering workers’ compensation or deciding what workers’ compensation insurance the company would carry.

Kissinger stated that the inactive employee policy under which the plaintiffs were to be terminated was primarily the work of David Lindsay, Clarcor’s vice-president of benefit services, Chris Beck, a Clarcor personnel administrator, and other people in Clarcor’s human resources department. Kissinger attended meetings that led up to the adoption of the policy. He took no notes of these meetings. He did not know the date of the meeting at which the new policy was first discussed.

Plaintiffs’ exhibit No. 2, admitted into evidence at the hearing, is “page four” of what appear to be notes from a Clarcor managerial meeting of September 27, 1990. There are eight headings relating to different aspects of wages and benefits. Under the heading “Workers’ Compensation” are these notes:

“Ron Moreau emphasized need to monitor these costs closely.
Policy will be drafted that removes employees from active status after six months off for any reason; benefits, other than those required by law, will be terminated at that time.”

Kissinger could not remember whether he had ever seen plaintiffs’ exhibit No. 2. He explained that Ron Moreau was vice-president of Clarcor’s consumer products group. Kissinger did not attend or recall the September 27, 1990, meeting, although he said that there may have been such a meeting.

Kissinger testified that Clarcor adopted its new inactive employee policy to contain certain costs, primarily medical insurance. Formerly, employees who went on inactive leave remained covered by group medical insurance for which the company paid most of the cost. Under the new policy, workers who were terminated because they had been inactive for a year could continue to receive this medical insurance, but would have to pay the whole premium themselves.

When the new policy was discussed at meetings, no one made any comparison of the respective costs of workers’ compensation and long-term disability insurance. The new policy did not distinguish between employees who were inactive because of work-related injuries (and thus drew workers’ compensation) and those who were inactive for other reasons (and thus received long-term disability benefits). Employees terminated under the new policy would continue to draw workers’ compensation or long-term disability benefits, as the case might be.

Kissinger admitted he had seen a copy of plaintiffs’ exhibit No. 1, a letter dated May 19, 1991, from David Lindsay to “general managers” and “personnel managers.” The letter summarized the process that led to adoption of the final draft of the corporate policy manual. Each person who received a copy of the letter also received a copy of the draft manual. The manual provided guidelines for divisional practices and procedures; Clarcor wished these practices and procedures to be as uniform as possible among the divisions. Lindsay’s letter advised each division to implement these employee-related practices and procedures to the extent that the division had not already done so.

Kissinger and other divisional managers had received copies of the new manual within a few weeks of the hearing. Kissinger did not know precisely what information employees had received. However, as the managers had received copies of the manual so recently, the employees had not yet been given copies of the manual, and supervisors and foremen had not been able to educate employees about changes in policy.

Kissinger was aware that all three plaintiffs had filed workers’ compensation claims. He did not know the current status of Patsy Turner’s claim. He was aware that Kevin Hess’ case was still pending before the Industrial Commission. Kissinger did not know whether Charles Turner was currently receiving workers’ compensation benefits.

Kissinger regularly referred injured employees for initial treatment to Dr. Koehler of Physicians Immediate Care of Rockford. He would consult with Dr. Koehler on whether employees who had been absent because of injuries should be allowed to return to work.

Kissinger received a March 26, 1991, report from Dr. Soriano and an April 19, 1991, report from Dr. David L. McCarty. Both doctors released Hess to return to work. As he had done with other employees who had received work releases from their physicians, Kissinger referred Hess to Dr. Koehler. Dr. Koehler told Kissinger that Dr. Soriano had released Hess because Hess had not followed Soriano’s instructions on “work hardening” (rehabilitation). Dr. Koehler placed major work restrictions on Hess. Kissinger did not recall Hess disputing these work restrictions, and Hess used a letter from Dr. Koehler detailing the restrictions to obtain public assistance. The company had not offered Hess any work since the releases.

Kissinger did not know when Hess filed for workers’ compensation. Clarcor’s insurance carrier had disputed whether Hess’ injury was work related; Kissinger was not involved in this dispute. Because his claim was disputed, Hess was receiving long-term disability benefits, not workers’ compensation benefits.

Patsy Turner was working for the Precision Products group when she injured her knee in June 1987. She was able to work in Precision Products after her injury, but, in 1989, Precision Products moved from Rockford to Fort Wayne, Indiana. Because she could not move to Fort Wayne, Turner attempted to work in Consumer Products in Rockford. However, after two or three days in Consumer Products, Turner told the company that her knee problems made her unable to work there. In September 1989, she went on leave and started receiving workers’ compensation, all ultimately the result of her 1987 injury. Since Turner became inactive in September 1989, Clarcor has not offered her any employment.

Kissinger testified that Clarcor was unable to find any jobs with the company that Turner could perform. Since September 1989, Turner had never asked to return to work and had never submitted a doctor’s note declaring that she was fit to return to work.

According to Kissinger, Charles Turner, Patsy Turner’s husband, had worked for Clarcor for 36 years. Since being injured in August 1989, Turner had done less than three full days of work. From July 30 to August 2, 1990, Turner tried to work as a trimmer slitter operator, but he told Clarcor that he was physically unable to continue with that job. Since then, he had not tried to return to work, and Clarcor had offered him no work. Kissinger stated that, as of the time of the hearing, Clarcor had no work that it believed Turner could do. By Turner’s admission, he had been unable to work since September 18, 1989.

Turner had received workers’ compensation after his August 1989 injury, but Clarcor’s insurer eventually decided to discontinue payments. Kissinger was not involved in the insurer’s decision; to his knowledge, the insurer’s decision to discontinue Turner’s workers’ compensation payments was unrelated to Turner’s termination under the new inactive employee policy.

Robert Luedke testified that his law firm represented Clarcor’s workers’ compensation insurance carrier in the Patsy Turner case. Generally, Luedke’s firm represented both the employer and the insurance carrier in a workers’ compensation case if these clients’ interests did not diverge.

Each plaintiff testified. Kevin Hess stated that he had been employed at J.L. Clark since 1979. Hess last worked as a material handler. He injured himself on June 1, 1990. On July 23, 1990, he filed a workers’ compensation claim, seeking total disability benefits. In October 1990, he went back to work, but was unable to continue because, as a result of the injury, his leg “went numb on [him] a couple times.” Dr. Soriano placed Hess on work restriction, and Hess had not worked for Clarcor since then.

In March 1991, at Hess’ request, Dr. Soriano examined Hess’ injured leg. Hess testified that he told Dr. Soriano that the leg was still bothering him; however, Hess also testified that his leg was not bothering him in March 1991 and that Dr. Soriano wanted to recheck Hess’ leg in the course of a regular doctor’s appointment. After Dr. Soriano made his examination, he told Hess that there was nothing more that he (the doctor) could do. Dr. Soriano gave Hess a work release, which Hess gave to Kissinger. Kissinger then referred Hess to Dr. Koehler, who placed substantial work restrictions on Hess. At Hess’ request, Dr. Koehler prepared a letter, admitted into evidence at the hearing, stating that Hess was unable to work. Hess requested the letter so that he could obtain public assistance from the Social Security Administration. His application for public aid was still pending at the time of the hearing.

Clarcor’s insurer refused to pay Hess workers’ compensation. After his workers’ compensation claim was denied, Hess started to receive long-term disability benefits from Clarcor. Hess was still receiving these benefits at the time of the hearing, and he acknowledged that the letter notifying him of his impending termination stated that even after he was terminated he would continue to receive long-term disability benefits.

Hess testified that Clarcor had offered him no work since March 1991. When asked what type of work he would be able to perform in his department, Hess replied “[m]aybe [one type of job in] Plastics, but that would be about it.” However, he also testified that he was not presently disabled. Although he had not informed the Social Security Administration that he was no longer disabled, Hess said that he would not accept the benefits for which his application was still pending.

Patsy Turner’s account of her employment and disability history was consistent with John Kissinger’s account. In June 1987, she injured her knee and back. She did not go off work until September 1987. She filed for workers’ compensation and received it without opposition from Clarcor or Clarcor’s insurer. After surgery in 1987, Turner attempted to return to work. However, her knee problems were so severe that, when the Precision Products group relocated to Fort Wayne, Turner’s medical restrictions prevented her from working in the job that Clarcor gave her with the Consumer Products group in Rockford. In September 1989, therefore, Turner went on the disability leave from which she did not return.

After going on leave, Turner continued at first to receive workers’ compensation benefits. When she stopped receiving these benefits early in 1990, she applied for social security benefits; as part of this application, she claimed she was unable to work. At the time of the hearing, the claim was still pending. Since filing for social security benefits, Turner had had her workers’ compensation benefits reinstated. At the time of the hearing, she was receiving these benefits, and she understood that she would continue to do so even after termination.

Turner had met several times with Mr. Yep of the rehabilitation service. Yep was trying to find her a job but had not done so yet.

Charles Turner testified that he was injured in August 1990. Since then, he had attempted once to return to work but, after working three partial days, realized that his injury made it impossible to continue working. He told Kissinger that the pain was too great. He had not since attempted to return to work. Turner received workers’ compensation until May 1991; at the time of the hearing, his emergency petition to reinstate these benefits was pending before the Industrial Commission. He could not perform his former job as a splitter trimmer operator; even a desk job would be very difficult. No one at Clarcor had told him that he could not reapply for work there.

Clarcor’s sole witness at the hearing on preliminary relief was David Lindsay. He explained that Group Services is a fourth group that manages various administrative services for Clarcor’s three operating groups. Lindsay had no responsibility for decisions about workers’ compensation.

Lindsay stated that Clarcor adopted the new policy because health care costs had been “skyrocketing.” The company’s medical insurance plan is funded 85% by Clarcor, directly from operating funds, and 15% by employee contributions. The plan operates as self-insurance up to $125,000; an insurance company pays the excess of any claim over that amount. In 1990, Clarcor paid out a total of about $5 million in health and dental benefits. Plaintiff’s exhibit No. 11, a company printout dated May 13, 1991, shows that in one 15-month period, Clarcor paid about $278,000 in medical benefits to inactive employees. An October 30, 1990, analysis of the cost of various company benefits (not including workers’ compensation benefits) demonstrated that, to purchase equivalent insurance in the marketplace, the average employee would have to pay $3,100 a year. Inactive employees accounted for a large share of Clarcor’s payroll. The company’s funds were limited, and it needed to continue to provide medical benefits to its productive employees to retain those employees.

Clarcor also paid short-term disability benefits out of operating costs and contributed part of the costs of providing long-term disability benefits. An employee need not remain on the company payroll to keep receiving long-term disability payments, because those payments continue for as long as a person qualifies up to age 65.

In May or June 1990, Lindsay first became involved in the development of the new inactive employee policy, when he and a benefits consultant began to review Clarcor’s benefit policies. The consultant told Lindsay that Clarcor’s treatment of employees who were not working was out of line with what the consultant knew of industry practices.

In September 1990, Lindsay discussed the possible new policy at an ad hoc personnel management meeting that covered many other subjects. At an October 1990 meeting of the same group, Lindsay presented a draft of the new proposal. On February 22, 1991, a top-level management meeting which Lindsay attended officially adopted the policy in its current form. When Lindsay spoke at this meeting, he had a general idea of how many Clarcor employees were on inactive status, but he did not know how many of these inactive employees were receiving workers’ compensation. No one at the meeting asked him about the composition of the inactive employee group.

Shortly after management approved the new policy, Lindsay investigated who was inactive and the reason for that status in each case. The purpose of the investigation, which Lindsay undertook on advice of counsel, was to ensure that Clarcor did not inadvertently discriminate on the basis of age, gender, race, or reason for disability. Lindsay’s summary of his investigation (admitted into evidence) shows that, as of May 1991, there were 46 employees on inactive leave; 23 were drawing workers’ compensation, and 23 were receiving long-term disability payments. Lindsay acknowledged at the hearing that some of the 23 employees receiving long-term disability benefits may have filed workers’ compensation claims that Clarcor’s carrier disputed.

The new policy became effective April 19, 1991. Lindsay described how the policy operates. An employee who is not actively at work for three months is officially placed on inactive status. If the employee does not return to active status within nine months, he or she is terminated, regardless of the reason that the employee is unable to work. Termination does not discontinue either workers’ compensation benefits or long-term disability benefits.

On September 4, 1991, the trial court entered a preliminary injunction for Patsy Turner. Finding Turner’s case factually similar to Hartlein, the court enjoined Clarcor from terminating Patsy Turner until further court order. The court denied preliminary injunctions to Kevin Hess and Charles Turner. On October 1, 1991, Clarcor filed its notice of interlocutory appeal (see 134 Ill. 2d R. 307(a)(1)) from the grant of preliminary relief to Patsy Turner.

On October 15, 1991, the court heard evidence on the plaintiffs’ requests for permanent relief. By stipulation, this hearing incorporated all the evidence from the previous hearing. Patsy Turner, Robert Luedke and David Lindsay testified further.

Patsy Turner stated that she was still cooperating with the vocational rehabilitation program, although she had yet to receive any job interviews. No one at J.L. Clark ever told her that she was being terminated for refusal to cooperate with the rehabilitation program. However, about two weeks before the hearing, the rehabilitation service told her she would stop receiving workers’ compensation unless she looked for a job.

Turner acknowledged that she had applied to the Social Security Administration for permanent disability benefits. On September 26, 1991, she received a notice of a decision in her favor. The decision awarded her almost two years’ benefits. The notice stated that the Federal agency had found that Turner’s injuries prevented her from returning to her previous work or performing any available alternative work. Turner admitted that the decision was based in part on her testimony and evidence before the Federal agency.

Robert Luedke testified that nowhere in his letter of June 11, 1991, to Gregory Tuite did he suggest that Patsy Turner would be terminated if she did not cooperate with rehabilitation efforts. When he was preparing this letter, Luedke knew nothing of Clarcor’s personnel policy and was not aware of the new inactive employee policy. He did not consult with anyone at Clarcor prior to sending Tuite the letter. About a year or more before the hearing, he and John Kissinger did discuss whether Patsy Turner might return to light work with Clarcor. This was the only time he discussed her case with anyone from Clarcor.

Luedke stated that Clarcor’s workers’ compensation insurance carrier, not Clarcor, retained his firm in Patsy Turner’s case. He acknowledged that the parties in Patsy Turner’s workers’ compensation included Turner and J.L. Clark, but not the insurance carrier, and that he filed an appearance as attorney for J.L. Clark. However, Luedke explained that his representation of J.L. Clark in the case was limited to the issue of Turner’s eligibility for workers’ compensation.

Clarcor’s insurance carrier approved Luedke’s decision to retain the rehabilitation service. Normally, the insurer would retain a rehabilitation service only if the injured employee was not expected to return to work for her present employer. Such vocational rehabilitation was customary for workers who could not return to their jobs, but who could still be employed in some capacity. The insurer and Luedke did not believe that Patsy Turner could go back to work at Clarcor, but they believed that she might be able to work elsewhere. Luedke was aware that the Social Security Administration had found that Turner was permanently disabled; however, the workers’ compensation claim would not be decided under the legal standards that the Federal agency used.

David Lindsay testified that Patsy Turner was terminated for the same reason as Charles Turner and Kevin Hess: the new policy. Lindsay stated that Turner’s discharge was not related to her workers’ compensation claim or her participation (or nonparticipation) in vocational rehabilitation. Lindsay never discussed Turner’s discharge with Luedke, and he never talked with Luedke or anyone else about the continuation or discontinuation of Turner’s workers’ compensation benefits. John Kissinger, not Lindsay, decided to refer Turner to Dr. Koehler, and Kissinger, as the manager of Turner’s particular department, decided to place Turner on inactive status.

After argument, the trial judge denied Kevin Hess and Charles Turner permanent injunctive relief. However, the court granted Patsy Turner a permanent injunction against discharge.

The judge referred the parties to his finding after the hearing on preliminary injunctive relief that Hess and Charles Turner were discharged solely on the basis of a policy that (1) did not discriminate against employees receiving workers’ compensation and (2) was based solely on economic reasons relating to the cost of carrying employees who were inactive for any reason.

The judge concluded, however, that Clarcor discharged Patsy Turner solely in retaliation for her workers’ compensation claim. The judge explained, as he had in granting Patsy Turner a preliminary injunction, that he believed her case was factually on point with Hartlein. At the end of the earlier hearing, the judge emphasized Robert Luedke’s letter of June 11, 1991, to Turner’s lawyer, Gregory Tuite; in particular, the judge noted that the letter stated that Turner’s workers’ compensation benefits would end if she did not cooperate with vocational rehabilitation. Because Turner cooperated with vocational rehabilitation, the judge concluded that Clarcor’s claim of a nondiscriminatory discharge had not been established.

On appeal, both Kevin Hess and Clarcor assert that Hess’ termination is legally indistinguishable from Patsy Turner’s discharge and that the two cases should have been decided the same way. Hess claims that his discharge should have been enjoined under the reasoning of Hartlein-, Clarcor argues that Patsy Turner’s case is distinguishable from Hartlein, and that, even if Hartlein is not distinguishable, this court should refuse to follow the fifth district’s course. Since the supreme court has now rejected the holding of the fifth district, the Hartlein rational is preempted.

To prevail on a claim of retaliatory discharge, a plaintiff must prove that (1) he was discharged; (2) in retaliation for his activities; and (3) the discharge violated a clear mandate of public policy. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172.) In Kelsay, the supreme court first recognized that an employee who is discharged in retaliation for filing or pursuing a workers’ compensation claim may recover in tort against the offending employer. The court based its analysis not on any particular section of the Workers’ Compensation Act, but on the public policy embodied in the statute. The Kelsay court explained that in Illinois, as elsewhere, workers’ compensation law replaced common-law tort principles as the result of a compromise: employers surrendered certain rights, such as numerous common-law defenses, and employees surrendered the common-law right to sue their employers in tort before juries that might be biased toward the employees. (Kelsay, 74 Ill. 2d at 180-81.) To allow employers to discharge employees for the exercise of the employees’ rights under the statute would enable employers to reap all the benefits of this compromise while avoiding most of the burdens. Therefore, Kelsay carved out an exception to the general rule that an employer may fire an at-will employee for any reason or for no reason at all. Kelsay, 74 Ill. 2d at 181-83.

Nonetheless, retaliatory discharge is a narrowly defined cause of action. (Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525; Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 209 (Reinhard, J., specially concurring).) A plaintiff must prove that his discharge was causally connected to his exercise of rights under the Workers’ Compensation Act. (Kritzen v. Flender Corp. (1992), 226 Ill. App. 3d 541, 549.) Causality is lacking if the basis for the discharge is valid and nonpretextual. (Slover v. Brown (1986), 140 Ill. App. 3d 618, 621.) Thus, an employer may fire an employee for excessive absenteeism, even if the absenteeism is caused by a compensable injury. (Marin v. American Meat Packing Co. (1990), 204 Ill. App. 3d 302, 309; Slover, 140 Ill. App. 3d at 621.) An employer is not proscribed from discharging an employee who is physically unable to perform his work. (Wright v. St. John’s Hospital (1992), 229 Ill. App. 3d 680, 688; LaPorte v. Jostens, Inc. (1991), 213 Ill. App. 3d 1089, 1093.) Furthermore, the employer is not required to find a new job for an employee who is physically unable to do his original job. Carter v. G C Electronics (1992), 233 Ill. App. 3d 237, 244; Wright, 229 Ill. App. 3d at 688; LaPorte, 213 Ill. App. 3d at 1093.

Generally, a party seeking a temporary injunction must show an ascertainable right in need of protection, a likelihood of success on the merits, an inadequate remedy at law, and an irreparable injury. (Witter v. Buchanan (1985), 132 Ill. App. 3d 273, 279.) The decision to grant or deny a preliminary injunction is a matter of the trial court’s discretion; however, where a preliminary order effectively decides the merits of the case, we consider whether the trial court’s findings are against the manifest weight of the evidence and whether the court erred legally. (Witter, 132 Ill. App. 3d at 279.) A permanent injunction is designed to extend or maintain the status quo indefinitely after a hearing on the merits, where it has been shown that there is no adequate remedy at law and that the plaintiff is suffering irreparable harm. American National Bank & Trust Co. v. Carroll (1984), 122 Ill. App. 3d 868, 881.

With these principles in mind, we conclude that the trial court correctly found that Kevin Hess did not prove that Clarcor attempted to discharge him in retaliation for his having filed a workers’ compensation claim. The record demonstrates clearly that Hess was terminated under the new absenteeism policy, that is, he was terminated for excessive absenteeism. Even though that excessive absenteeism resulted from a compensable injury, the resulting termination was not retaliatory. (See Slover, 140 Ill. App. 3d at 621.) Moreover, Hess admitted that, at the time of his termination notice (and at the time that his termination would actually have taken effect), he was physically unable to perform his job. In line with precedent, we decline to hold that an employer must retain an employee who is physically unable to do his work.

Were there clear evidence Clarcor’s new absenteeism policy was an ostensibly neutral scheme that actually had the purpose and effect of penalizing employees for filing workers’ compensation claims, we might look beyond the form of the policy and discern retaliation in fact. However, the trial judge properly credited evidence that the policy was facially neutral, that Clarcor adopted the policy for a legitimate business purpose, and that Clarcor applied the policy evenhandedly to any employee who had been inactive for the requisite period of time — whether or not the inactivity was the result of injuries compensable under the Workers’ Compensation Act.

Thus, Clarcor’s inactive employee policy, however harsh, did not violate public policy as defined in Kelsay and its progeny. The company’s decision to terminate Kevin Hess was akin to a termination resulting from a general reduction in force, which is not prohibited. See Groark v. Thorlief Larsen & Son, Inc. (1992), 231 Ill. App. 3d 61; Armstrong v. Freeman United Coal Mining Co. (1983), 112 Ill. App. 3d 1020, 1022.

Moreover, although the precise issue has not arisen in Illinois’ courts, courts in numerous other jurisdictions have concluded that the discharge of a worker who has filed a claim for workers’ compensation is permissible if the discharge is the result of the nondiscriminatory application of a facially neutral absenteeism policy. See, e.g., Hayden v. Bruno’s, Inc. (Ala. 1991), 588 So. 2d 874; Chiaia v. Pepperidge Farm, Inc. (1991), 24 Conn. App. 362, 588 A.2d 652; Smith v. Electrical System Division of Bristol Corp. (Ind. App. 1990), 557 N.E.2d 711; Clifford v. Cactus Drilling Corp. (1984), 419 Mich. 356, 353 N.W.2d 469; Mitchell v. St. Louis County (Mo. App. 1978), 575 S.W.2d 813; Galante v. Sandoz, Inc. (1983), 192 N.J. Super. 403, 470 A.2d 45; Duncan v. New York State Developmental Center (1984), 63 N.Y.2d 128, 470 N.E.2d 820; 481 N.Y.S.2d 22; Barker v. Dayton Walther Corp. (1989), 56 Ohio App. 3d 1, 564 N.E.2d 738; Wilmot v. Kaiser Aluminum & Chemical Corp. (1991), 118 Wash. 2d 46, 821 P.2d 18; Yoho v. Triangle PWC, Inc. (W. Va. 1985), 336 S.E.2d 204.

A few jurisdictions prohibit the discharge, even pursuant to a neutral absenteeism policy, of an employee who has pursued a workers’ compensation claim. (See Judson Steel Corp. v. Workers’ Compensation Appeals Board (1978), 22 Cal. 3d 658, 586 P.2d 564, 150 Cal. Rptr. 250; Coleman v. Safeway Stores, Inc. (1988), 242 Kan. 804, 752 P.2d 645; Lindsay v. Great Northern Paper Co. (Me. 1987), 532 A.2d 151.) We decline to follow these cases, as they rely on the effect of the policy on workers and reject the rule of Kelsay that the employee seeking to recover for retaliatory discharge must prove retaliatory intent on the part of the employer. These cases thus reject the holding of Illinois’ courts that an employee may be discharged for excessive absenteeism, even if the absenteeism is the result of a compensable injury. Finally, no case we have found penalized the employer for terminating an employee who was physically unable to do his work, and courts in two of the three jurisdictions cited in this paragraph have stated explicitly that an employer need not retain an employee who is physically unable to perform or for whom there is no longer an available position. Judson, 22 Cal. 3d at 667, 586 P.2d at 569, 150 Cal. Rptr. at 255; Rowland v. ValAgri, Inc. (1988), 13 Kan. App. 2d 149, 153, 766 P.2d 819, 822.

We find no reason to disturb the trial court’s decision to deny a permanent injunction to Kevin Hess.

We next turn to Clarcor’s argument that the trial court erred in holding that Clarcor attempted to terminate Patsy Turner in retaliation for her having pursued a workers’ compensation claim.

After a full review of the record, we find, as Clarcor argues, that the cases of Patsy Turner and Kevin Hess are legally indistinguishable. Each termination was the result of Clarcor’s facially neutral and evenhandedly applied absenteeism policy. The termination notices to Hess and Turner (and the notice to Charles Turner) went out at the same time, specified the same reason for each termination, and gave August 1, 1991, as the date for each employee’s planned termination. In each case, the employee could have avoided termination by becoming an “active” employee as defined under the new policy. In each case, the employee did not become “active” within the time required by the policy, and Clarcor terminated the employee.

We find that the trial court’s finding that Clarcor discharged Patsy Turner in retaliation for her exercise of rights under the Workers’ Compensation Act is both against the manifest weight of the evidence and legally erroneous. We therefore reverse both the preliminary injunction and the permanent injunction in favor of Patsy Turner.

This district has followed the general rule that a court will not compel an employer to retain an employee in its service. (Kurle v. Evangelical Hospital Association (1980), 89 Ill. App. 3d 45, 53-54; see also Witt v. Forest Hospital, Inc. (1983), 115 Ill. App. 3d 481, 487-88; Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 904.) This rule is in line with Federal holdings that, absent a statutory requirement of reinstatement or truly extraordinary circumstances, a court will not compel an employer to retain an employee or reinstate a discharged employee. Sampson v. Murray (1974), 415 U.S. 61, 88-92, 39 L. Ed. 2d 166, 185-88, 94 S. Ct. 937, 951-53; American Postal Workers Union v. United States Postal Service (2d Cir. 1985), 766 F.2d 715, 720-21.

The general rule is rooted in two main considerations: (1) money damages are ordinarily considered adequate compensation for the loss of employment, even given the possible attendant stigma or difficulties in finding new work (see Sampson, 415 U.S. at 92 n.68, 39 L. Ed. 2d at 187 n.68, 94 S. Ct. at 953 n.68; Kurle, 89 Ill. App. 3d at 55 (Seidenfeld, J., specially concurring)); and (2) courts are not well suited to enforce a continuing relationship between parties who have become hostile to one another, especially (though not only) where that relationship requires trust and confidence (Kurle, 89 Ill. App. 3d at 54).

In sum, we affirm the trial court’s denial of relief to Kevin Hess, and we reverse the trial court’s grant of preliminary and permanent injunctive relief to Patsy Turner.

The judgments of the circuit court of Winnebago County are affirmed as to Kevin Hess and reversed as to Patsy Turner.

No. 2—91—1100, Affirmed as to Kevin Hess; reversed as to Patsy Turner.

No. 2—91—1296, Reversed.

No. 2—91—1336, Affirmed.

UNVERZAGT and BOWMAN, JJ., concur.