Take a moment to access this Bob Dylan Cover of The Times they are a changing.
Press Play.
Now, with that well known folk sound in the background I will make my brief but important point about Virginia Non-Compete law or rather Virginia Business Tort law: The law, it is a changing.
A few weeks ago I wrote about a federal decision where the Court held one company could be liable for tortious interference of contract when it hired employees they knew had a restrictive covenant. I even went so far to express my disagreement with the Court’s analysis or, more generally, the application of tortious interference to at will employment relationships.
Then, today, as I opened my Virginia Lawyer’s Weekly, I read that 4th Circuit Court of Appeals (the boss court of the federal court earlier referenced) just held in a different case that a Maryland Company could not sue the company that hired its CAO for tortious interference with contract.
Why not? Because the timeline of events and evidence showed the offer of employment was made before the employee notified the new potential company he had a contract. Then, employee quit. Then company #2 hired him and at that moment he was breaching his contract. The interference was not the offer of a job, but the job itself – and that occurred after he resigned.
I know, confusing.
But I think where this court is going makes sense.
Is a job offer (regardless of whether offering company knows potential employee has a non-compete) tortious interference?
Of course not. Its an offer.
Is employment of a person, not knowing they have a non-compete, tortious interference? I have yet to see a Virginia judge say it is, or that the employer had a duty to ask to protect the company from such a claim.
Is employment of a person you know has a non-compete, tortious interference? One federal Court in Virginia says maybe. The 4th Circuit Court of Appeals says probably not.
As the song says – Mothers and Fathers, “don’t criticize what can’t you can’t understand.”
I won’t criticize. I will simply point out that even business tort law is evolving. Duties of employers and employees is always changing and as Virginia law changes and bends, I will do my best to advise clients how to act and behave in such a way that they can avoid litigation and go about their business.