More and more frequently employers, in addition to suing their ex-employees for breach of their non-compete agreement, are also claiming the ex-employee is guilty of the “tortious interference” of the employer’s contractual relationship with its customers.

Just what does this mean? The answer is “it depends.” It depends on whether the contract at issue is for a stated duration/length of time or terminable at the discretion of either party(also called “terminable at will contracts”).

Under Virginia law, if the contract is for a stated duration of time the following elements must exist to prove a claim of tortious interference with contract/business expectancy: (1) existence of a contract or business expectancy; (2) knowledge of that contract or expectancy by the ex-employee; (3) intentional interference by the ex-employee inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damages.

If the contract at issue is terminable at will and not for a stated period of time/duration, Virginia law requires proof of the four elements above but adds a requirement of evidence to establish the ex-employee interfered by improper means or methods. In other words, if the contract was terminable at will the employer must prove the employee induced the breach of contract by intimidation, bribery, violence, fraud, etc. This additional element of proof makes it very difficult for the employer to be successful in cases where the contract at issue could be terminated by either party at any time.

My Take: Employees should not be intimidated by their ex-employer’s claim of “tortious interference” with contract….especially when the contract is not for predetermined length of time.

Dan Frith
Dan Frith

Dan Frith has over 25 years of experience representing individuals and families in cases of medical malpractice throughout Virginia. He has been named "Best Medical Malpractice Attorney" by Roanoker Magazine and is a member of the Million Dollar Advocates Forum. To speak with Dan, contact him by email at dfrith@frithlawfirm.com.